Situations for acquittal of an accused person under the Criminal Procedure Act

INTRODUCTION;

As per the question is concerned, it demands us to show Basic situation which can lead to acquittal of the accused person under the Criminal Procedure Act 9 of 1985,  and whether those acquittals lead to bar subsequent proceeding against the accused on the same facts, in due course of attempting this question, the term of accused person and  acquittal will be defined, and in the main body, the Basic situation which can lead to acquittal of the accused person under the Criminal Procedure Act 9 of 1985,  shall be discussed, also the discussion will show as to whether those acquittals lead to bar subsequent proceeding against the accused on the same facts, then conclusion will end up this work.

MAIN BODY;

Acquittal; refer to the act of discharging an accused person from prosecution upon a verdict of not guilty, or on a successful Plea of autrofois convict, acquit, or pardon, in which it may bar to any subsequent prosecution[1].    

An accused person; is the person who is charged with an offence,[2] it reflect any person who has commit any act, default, or conduct prejudicial to the community and against any provision of the law or statute, who will be made responsible liable to punishment by fine or imprisonment in a special proceedings once it is proved beyond the reasonable doubt by the prosecution side, that he/ she has committed an offence[3].

Bar in a plain meaning of it, it refers to limitation against something. But in the field of law, in order for anything to act as a bar, to a subsequent proceedings, the case must have been decided on merit and the decision made thereon by the court of competent jurisdiction, a case is said to have been decided on merit where the prosecution has already argued its case and the accused person has an opportunity to defend himself and thereby facilitating the court or tribunal to pass the verdict of either guilty or not.[4]

Criminal procedure, is procedural law, which supplement the substantive law, it provide for the process that the case will go through, and also govern the process for determination the rights of parties to the case.

The learned Judge, Katiti in the case of joseph masunzu v R.[5]  has once supported the need to have the direction or procedure to follow before reaching a judgment, thus by adhering to due process we there by ensure justice, and that is why in the case of Kamundi v R[6] it was held that, the whole purpose and intention of criminal procedure is to lay down provision and procedures to see that justice is done. Hence criminal procedures have to be adhered to, in order to avoid miscarriage of justice.

Under Criminal Procedure Act 9 of 1985, (herein after referred as C.P.A)[7] which is the main source of procedures on how the state and its law enforcers handle individual suspects, accused of committing crimes with a view to establish their guilty or innocence before the court of law.[8]  Among many provisions, there are some provisions which provide for the basic situations which can lead to acquittal of the accused person, and the same provision states whether the acquittals may bar subsequent proceeding against the accused on the same facts, as explained here under.

Where there is no prima facie case established against the accused; this base on fact that, at the end of prosecution case and before the accused is called to enter his defense, the court must make findings as to whether the evidence adduced is sufficient and make the accused to have the case to answer, if the evidence shall support the charge then the accused must be invited to make his defense , if  evidence shall not support the charge, the court must come up with the ruling of no case to answer, in which the accused shall be acquitted[9].

Also the accused person may as well submit a no case to answer in which, the court should judicially determine it, this point is supported by section 230 of C.P.A, which in summary provides that, a person shall be acquitted if there is no case to answer.

So if the prosecution side fails to prove beyond reasonable doubt, the accused is said to benefit from that failure, the presumption arises from the principle of natural justice that, “the person is presumed to be innocent unless proved to be guilty.” This is as per the case of John Nyamhanga Bisare v R[10]

In the case of R. v. Said Rasamu Tamimi,[11] the learned judge in reaching the conclusion, he pointed out that,The accused’s statement to the police amounted to a confession., as the accused’s threat is the only evidence remaining, there is no case to answer.

The learned judge also referred the cases of R. v. Siprian s/o Nshange[12] and Chabildas Somaiya v. R,[13] where by in these cases also it was found that, the accused persons had no case to answer hence acquitted.

In making the rule if no case, it is important that, the magistrate should record his reason, since doing so becomes helpful to the prosecution side, to decide whether to appeal or not.

 The absence of prima facie case against the accused, is one of the situation which the accused person can be acquitted, but it can not act as a bar to the subsequent prosecution of the same facts, when prosecution side decides to appeal, if the appellate court finds that there was a case to answer, it will set a side the acquittal (Shabudini merell 1963), and the trial court shall continue with the hearing.

This can be proved in the case of R. v. Joseph Chapala[14],   in this case, the learned judge observed that, it seems the trial magistrate has failed to understand the principals underlying the decision in Cherere Gukuli v. R[15].   And due to this fact, appeal allowed, acquittal is set aside, and case remitted to trial court for hearings to proceed.

Hence, absence of the case to answer shall put the accused away from subsequent proceedings, if at all the prosecution side does not intend to appeal, but if the prosecution side appeals  and the appellate court finds tat there is a case to answer, it can not act as bar for the subsequent proceeding of the similar facts.

Plea of autrefois convict, acquit, and pardon; A plea is the reply to the charge about its truthfulness, section 228(1) of C.P.A, require the court to state the charge to the accused person and ask him to plea thereto, the accused can make a plea of guilty, not guilty, lack of jurisdiction or autrefois convict, acquit, and pardon.

 where an accused person plead that he has been convicted, acquitted, or given a pardon, the court should enquire whether it is true or not, this is according to section 228 {5} of the C.P.A.

This base on the cannon of the administration of justice that a person can not be tried twice on the same offence of the same fact unless, the previous convict, acquittal has been set aside or reversed under section 137 of the C.P.A and the case of loizeau v. R[16], or due to an error of jurisdiction which has vitiated the competence of the court as per section 140 of C.P.A.

On the side of pardon, the president only has been vested with this power, and its normally him who can rescind the pardon, Article 45 (a)of Constitution of United Republic of Tanzania.[17] Provide that;

“A president may grant a pardon to any person convicted by a court of law of any offence and he may grant such pardon unconditionally or on condition subject to the law”. Also section 280 (1) (b) of the C.PA, supports that the accused person can plead a plea of pardon.

 Hence a person who has obtained a pardon from the president can no be prosecuted for the same offence of the same facts. However this plea can not act as a bar to the subsequent proceedings, if the court has rescinded the pardon through judicial review.

If the accused person pleads for a Plea of autrefois convict, acquit, and pardon, he/she has to clearly state it when replying to the charge, and also he/she is allowed to raise this plea at any stage of the case before the closure of the defense case. As general rule the one who pleads this plea must prove.

The accused person has to prove the previous acquittal, by showing certified copy of a judgment local or foreign, or a prison discharge warrant or a copy of the certificate of an a acquittal order, as per section 239 of C.P.A, which provide that;

The production of the copy of the order of acquittal certified by the clerk or other officer of the court shall without other proves be a bar to any subsequent matter against the same accused.

By the virtue of this section, it prove that, if at an accused person will be in the position to show the copy of acquittal certificate of the same offence, shall be acquitted, forthwith act as a bar to subsequent proceedings of the same offence.

This was in the position in case of Maduhu Masele .v R[18]the accused person, tendered the certificate of an acquittal CR no. 107/87 to the court, and claimed that he can not be charged with the present case CR. C No.149/87

To prove previous conviction, the accused person must tender a certified copy of the sentence or order, a certificate of the prison department, a certified true copy of the judgment as per section 141(1)(a-d) of the C.P.A.   And to prove pardon, an accused must prove by showing a certificate by the state house or home affair ministry, or a certificate of the prison department, or a warrant of discharge.[19]

In addition a Plea of autrefois convict, and acquit can be successfully pleaded (act as a bar), where the conviction was for the exactly offence subsequently charged or the subsequent is based on the same act or omission as those in respect of which the previous conviction was made and some statute directs that, a person shall not be punished twice in the same act or omission[20], this is per section 137 of CP.A.

For example for the conviction of an assault causing actual bodily harm is the bar to the subsequent charge of unlawful wounding based on the same facts. Hence bar the subsequent charge.

           

However, the Plea of autrefois convict, acquittal can not act as the bar to the subsequent proceedings, if the previous decision has been set aside or reversed under section 137 of the C.P.A, this was the position in the case of Ally Hassan Mpapata V R[21], the court held that, where the previous trial has been declared null and void by the superior court either on appeal or revision, the Plea of autrefois convict, acquittal is a not available.

Also, by the virtue of section 139 of the C.P.A, which provide that, a person can be tried again for the consequence resulted from the first offence which he has been convicted, or acquitted with.

Illustration;

If a person assault another, and he then charged and convicted or acquitted, of assault causing actual bodily harm, and the victim of such assault dies subsequently to such conviction, such conviction is not a bar to a subsequent charge of murder in respect of that assault.

Hence in this situation the plea of autrefois convict, and acquit, can not act as bar to the subsequent proceedings.

 Also when there was an error of jurisdiction which had vitiated the competence of the court as per section 140 of C.P.A, which provide that; A person convicted or acquitted for any offence constituted by any act may, notwithstanding such conviction or acquittal be subsequent charged with and tried for any other offence constituted by the same act, if he may have committed, if the court by which he was first tried was not competent to try the offence, with which he is subsequently charged.

Where the court fails to find something in support of the above pleas then the accused must be called upon to plead to the charge either guilty or not guilty or by remaining silent as pre section 228(5) of the C.P.A.

Therefore, the Plea of autrefois convict, acquit, and pardon can be the good ground to acquit the accused person, and it will act as a bar for subsequent proceedings if at all it is proved before the court of law, on the other hand, it can not act as a bar for subsequent proceedings, if the previous conviction, acquittal has been set aside or reversed under section 137 of the C.P.A, or due to an error of jurisdiction has vitiated the competence of the court as per section 140 of C.P.A,  and other factors as how it has been explained there above.

Non appearance of the complainant during hearing of the case; according to section 222 of the C.P.A, which provide that, if on the date set for hearing, the accused appear in court but the complainant having the notice of time, date and place of hearing does not appear the court will dismiss the charge and acquit the accused person..., unless for some important reason as the court may find it proper to adjoin the hearing. In criminal cases especially those in public prosecutions, the complainant is the public prosecutor i.e. (the person who present the case on behalf of the public before the court).

This provision has been enacted to help the accused, to avoid harassment of the complainant by not attending to the court, and thereby delay the proceedings; In the case of DPP V Arbogast Rugaimukamu[22] the court dismissed the case against the respondent because of non appearance of public prosecutor.

Also, non appearance of complainant after the adjournment of the case may acquit the accused person, according to section 226 of C.P.A, among other things, it provides that, if the complainant does not appear before the court after the adjournment of the case, the court may dismiss the charge and acquit the accused.

The Dismissal of the charge and acquittal of the accused due to non appearance of the complainant, can act as a bar for the subsequent proceedings, if the complainant totally does not appear to the court, or where the court proves that, the complainant has no good reason to justify his absence, or the mere intention of delaying the proceedings of the case[23].

However the Dismissal of the charge and acquittal of the accused due to non appearance of the complainant, is not a bar for any subsequent trial, this mean that prosecution can still charge the suspect of the same offence based on identical facts, if the complainant comes up with the genuine reasons as why he did not attend the hearing of the case[24].

This was put clear in the case of DDP V Phillipo.[25] Where at first instance, the accused was acquitted due to non appearance of the complaint, but later the complainant alleged that he was not served with the summons, hence the acquittal was set aside and allow the court to proceed with the hearing of the case.

Another situation is, Withdrawal of the case by the public prosecutor; public prosecutor is an official appointed to conduct criminal proceedings on behalf of the state. As per section 2 of C.P.A, public prosecutor, Means a person appointed under section 95 of C.P.A, and include, the Director of Public Prosecutions, the Attorney General, the Deputy Attorney General, a Parliamentary draftsmen, State Attorney, and any other person acting in criminal proceedings under the direction of public prosecutions.

The public prosecutor is given the power under section 98 of the C.P.A, to withdraw the case he is prosecuting either generally or specifically, in respect of one or more offences, which the accused person is facing before the court. For example, if the accused person is charged with rape and another count of theft, the withdrawal may be either be for the two offences generally, or of rape and not theft and vice versa(specifically)

  The public prosecutor may withdraw the case at any stage of the trial before judgment and with the consent of the court or an instruction of the Director of Public Prosecution (D.P.P).

The reasons in which the public prosecutor can withdraw the case may be, where it is shown that the person charged was not in fact the person who committed the offence or the act complained of, also where it is clear that the act constituted no offence against the accused[26].

Also withdrawal of the case can be done by the private complainant; this is mostly initiated by a private complainant. Mostly where the offence is minor one, and must be one triable by the subordinate courts like primary courts,[27]

section 224 of the C.P.A, clearly provide that, the complainant can withdraw himself at any time before the final order is passed, but has to satisfy the court on the sufficient grounds of withdrawing the case, if the magistrate accepts shall there upon acquit the accused person.

But upon such withdrawal two effects can be resulted; first, if it is made before the accused person is called upon to make his defense shall be discharged, but such discharge of an accused person shall not operate as a bar to subsequent proceeding against him on the accounting of the same fact, this is as per section 98(a) of the C.P.A, which is also given weight by the case of Pegi Msemakweli v R.[28]

However the second limb of the rule of withdrawal is, if it is made after the accused person is called upon to take his defense, he shall be acquitted as provided under section 98 (b). , and no subsequent founded on the same fact can be entertained, this is per the case of R v. Jivan Nathu.[29] This point is based on the fact that all the material fact are before the court, and the withdraw is a sign that, the accused has realize that it has no concrete case against the accused, hence amount to acquittal.

CONCLUSION;

To sum up this work, although the situations discussed above can make the accused person to be acquitted, but this is not completely, because there are circumstances, where by these situations can bar to the subsequent proceedings, or they may not bar to the subsequent proceedings against the accused person, but all in all, this is the practice practiced by the court of law to make sure that justice is done to all parties in the case.

BIBLIOGRAPHY;

STATUTES;

THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA 1977, {CAP 2 R;E 2002}

THE CRIMINAL PROCEDURE ACT 1985, {CAP 20 R;E 2002}

BOOKS;

N.K, CHANDRASEKHARAN PILLAI, LECTURE ON CRIMINAL PROCEDURE 4^TH EDN.

MANUALS;

S.E,MCHOME, CRIMINAL LAW AND PEOCEDURE, PART THREE, UNIVERSITY OF DAR ES SALAAM,1995.

MSHANA S, CRIMINAL PROCEDURE, POLICE COLLEGE, DAR ES SALAM, 1998.

N.E MWAKAMBONJA, CRIMINAL PROCEDURE LECTURE NOTES, DAR ES SALAAM, 1996.

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[1] ibid

[2] L.RUTHERFORD AND S. BONE, OSBORN’S CONCISE LAW DICTIONARY,P.

[3] ibid

[4] S.E, MCHOME. CRIMINAL LAW AND PROCEDURE, P.46

[5] CR.APP.3 1999(HC) (TB) P.3

[6] (1973) E.A 540/545

[7] {CAP 20, R;E 2002}

[8] S.E, MCHOME. CRIMINAL LAW AND PROCEDURE, P.3   

[9] S.E, MCHOME. CRIMINAL LAW AND PROCEDURE p.121

[10] {1980}T.R.L P.6

[11] CRM. Sass. 12-Z-66, 14/3/67

[12] 14 E. A.C.A. 72 (1947

[13]  20 E.A.C.A. 144(1953).)

[14] Crim. App. 289-D-69, 12/11/69

[15] (1965) 22 E.A.C.A. 478.”

[16] (1956) E.A.C.C.A 566    

[17] {CAP 2 R;E 2002}

[18] {1991 T.L.R}

[19] S.MSHANA, CRIMINAL PROCEDURE. P.53.

[20] ibid                                                       

[21] (1992) TLRL.265

[22] (1982)                T.L.R 139

[23] N.K, CHANDRASEKHARAN PILLAI, LECTURE ON CRIMINAL PROCEDURE, P.195.

[24] Ibid.

[25] (1971) H.C.D 295.

[26] S.MSHANA, CRIMINAL PROCEDURE. P.53

[27] N.K, CHANDRASEKHARAN PILLAI, LECTURE ON CRIMINAL PROCEDURE, P.191.

[28] (1997) T.L.R 331

[29] (1944) 11 E.A.CA 62