"PLEA" IN Criminal cases

INTRODUCTION.

Expression right is very essential right as provided under Article 18(a) to (d) of the constitution of United Republic of Tanzania as amended from time to time, that every person has a freedom of opinion and expression of his ideas, has right to communicate and rights of freedom from interference with his communication, also right to be informed at all times of various important event of lives and activities of the people and also issues important to society. The Court in the prosecution of the case does not abuse the right of expression and right to be heard for the parties before the decision is reached.

(a) A plea is a reply to the charge about its truthfulness[1]. The Blacks law dictionary defines a term plea as an accused person’s formal response of guilty, not guilty or no contest to a criminal charge termed as a criminal plea[2].

A plea has come to mean the assertion by a criminal defendant at arraignment or otherwise in response to a criminal charge whether he or she is guilty or not guilty.[3]

The Law requires the court to state the charge to the accused person and ask him to plead thereto[4].  In any case and subject to some statutory exceptions, the plea must be personal, free, and voluntary and by a fit person. That’s the reason why the accused should be present at the trial that he may hear the case made against him and have the opportunity of answering it”. ( ord Reading, C.J)[5]

And as per Lord Reading (Supra) the presence of the accused means not merely that he must be physically present, but also that he must be capable of understanding the nature of the proceeding.

    

 (b) The following are the pleas an accused person can make,,

 i) Plea of guilty.

       Plea of guilty means that the accused person having listened to the charge and its particulars admits their truthfulness. In simple terms plea of guilty means a confession to the offence charged. Pleas of guilty are governed by section 228(2)[6] , stated that:  “If the accused admits the truth of the charge his admission shall be recorded as nearly as possible in the words he uses, and the magistrate should convict him and pass sentence upon or make an order against him, unless there shall appear to be sufficient cocas to the contrary.”

      The court records everything which the accused persons say in his own words which indicate that he has actually pleaded guilty. As in the case of Patrick Hammer V R[7], a plea of guilty has two  aspects: first of all it is confession of facts, secondly, it is such a confession that without further evidence the court is sniffed to and indeed in all proper circumstances will and upon it and result in a conviction A plea of guilty must be clear and free from ambiguities that is to say it must be an unequivocal plea, a plea like “it is true”, “ l admit” “ l did Wrong”, but if someone plea that it is  “ true but…” “Did it because….” And the like this is not clear and it is full of ambiguities and so it is equivocal plea. The plea of an accused should not be equivocal.

      This plea leaves the court in doubt whether the accused denies or admits the truth of the charge in Masau Muya V R,[8] “it was said it is will settled that the word “ nilikosea” meaning l have done wrong by itself should not be treated as an Unequivocal plea of guilty without inquiring as to what it was, he appellant admitted he had done” It is prudent that before accepting a plea of guilty by the accused the court must be satisfied that the accuser’s reply is nothing but a dear admonishing of guilty. The reading of a charge and calling the accused to plead is not enough, the court must make sure that the accused understands the substance of the charge and he must admit all the ingredients of the offence.

      The Court is required to take a plea of guilty from the accused with greater caution the court must make sure that the accused knows precisely what he is doing under section 228 (2)[9] the court is required where the accused pleads guilty to record his admission as nearly as possible in the words he uses. Furthermore the accused plea must be as such as to leave the court with no doubt that every ingredient of the offence has been satisfied in Keneth Manda V R[10], where the court said “An accused person can only be connected on his own plea of guilty it is ascertained as correct facts which constitute the ingredients of the offence charged.”

      It is emphasized that when accused plead guilty to a charges the prosecution should be called upon to state in some details the fact constituting the offence which are recorded. The accused should be asked if he agrees or disagrees with the fact alleged. If he agrees and if to facts stated support the charge, then and only then should a conviction be entered if the accused denies some facts stated which are essential to the charge then a plea of not guilty should be entered in substitution for the first plea then the case should go to trial. In some instance the facts denied by the accused might not affect the validity of the charge in which case if the prosecution in willing to accept the accuser’s version of guilty will remain undisturbed  and a conviction be entered.

       The facts serve the following purpose facts enable the magistrate to satisfy himself that the plea of guilty was really unequivocal. That the accused has no defense, it given the magistrate the basic material on which to assess the sentence. Aidan V.R[11]. The court is required to convict an accused person who pleads guilty and admits the facts of the are in the case of Dpp V. Faraji Hussein[12]  the respondent was charged with two offences: First court careless diving which he pleaded it is true that “i admit it was my fault”. Secondly, court diving a motor vehicle on a public road, which was not in good mechanical condition which he pleaded, “I admit it was my fault.”

       Prosecution applied for adjournment to read the facts. For three instances the prosecution failed to supply facts. Prosecution applied to withdraw the  charge under section 98(a), but the magistrate withdraw under section 230 criminal produce Acts Dpp appealed; the court held that; “When an accused is charged with an offence and unequivocal pleads guilty the court has power to acquit him but has the duty to convict him and pass sentence upon him unless sufficient cause to the contrary is shown” When the accused pleads guilty the court is leisured to call upon the prosecution to narrate the facts relating to the offence charged.

ii) Plea for not guilty.

       This is entered where the accused denies the charge in such a term as “it is not true” “am not guilty” it is a lie,” and so on. The magistrate must record that it is a plea of not guilty. If the accused Words in his plea leave no room for doubt that he is denying the charge that is Complete. In other words, it will then not be open to the magistrate to start probing into such accused’s plea to elicit from the accused what he denies and what he admits. Pleas of not guilty “ it is not true” and such other phrases, all mean “ not guilty” and that means that, the accused is putting in everything that has been alleged against him, and so it will be for the prosecution to prove every fact and circumstance alleged against him, section 228 provides for this.

      Plea of not guilty may be necessitated by a number of factors: when the accused dos not admit the truth of the charge then a plea of not guilty is entered, this is provided under  section 228 (2), when the accused admits the truth of the charge but in  fact he pleas is  equivocal, this is provided under section 228(2), where the accused refuses to plead the court shall order a plea of not guilty to be entered for him this is provided under section 228(4) of the criminal procedure Act where corporation fails to enter appearance then a plea of not guilty is entered for it this is provided under section 106 of the criminal procedure Act, when the accused enters a plea which in the Opinion enters a plea which in the opinion of the court droop not constitute full admission of all elements of the charges when the accused stand mute. This is provided under section 228(4). The magistrate will enter a plea of not guilty for him

     Moreover there are two reasons why the accused may stand mute and includes the following;

The accused may stand mute out of malice hence the accused fully understand the charge and can defend himself but he delicately stands mute. In the case of Wachira s/o Mwage and others VR.[13]  The accused was charges with murder he refused to plead and created an up roar in the court which raised doubts as to his sanity when examined by a psychiatrist he was found to be mentally normally and merely smutting disease of the mind presumable with the object of avoiding trial. The appellant created such disturbance that it was not possible to conduct the case in his presence the judge entered a plea of not guilty on his behalf and ordered his removal. Must of the trial took place in his absence except that he was brought in for identification and to be given an opportunity to make his defense (which he refused to do) to be informed of the effect of the judgment and to be sentenced on appeal it was.“ in this unusual situation of trial judge may be in doubts as to the  correct procedure. We desire  to say that in our opinion the course adopted by the learned trial judge in this case details of which are careful set out in his  notes and judgment together with the relevant authorities was not only strictly  correct but may will serve an a model for other judges who  may be faced with the same problem|”

iii) Plea of autirefois, convict, acquit and pardon

      Where the accused pleads that he was been acquitted or convicted or has obtained pardon in law the court should inquire whether  such plea is true or not section 228(5) of criminal procedure Act. It is the law of the administration of criminal justice that no person shall be tried twice for the same offence arising of the same facts unless the previous conviction has been set aside or reversed under section 137.

How to prove them:

Previous acquittal. This by a certificate certified copy of the acquittal order or a release certificate of the prison department where the accused was in remand before the acquittal and a certified copy of judgment- Local or foreign, lastly a prison discharged warrants.

Previous conviction. A certified copy of the sentence or order, or a certificate of the prison department, and lastly a certified true copy of the judgment this is provided under section 141 (1) (a-(d) of criminal procedure Act.
Pardon. A certificate by the state house or home affairs ministry, or a certificate by the prison departments, or warrant of discharge.

iv) Plea by advocate

The general rule is that the plea of an accused should be recorded in his own words section 228 (2) provides this. However the exception to this rule is provided under section 193 of the criminal procedure Act. Where the court dispenses a person his personal attendance may plead guilty through writing or an advocate. This plea will be taken only if he person is charged with a warrant offence the offence is punishable by fine. The punishment of both fine and imprisonment. Such as in the case of R.V. Hussein Mohamed Moti[15], the appellant was convicted on two charges of contravention of by laws the personal appearance of the respondent was dispensed with. An advocate appeared for respondent and tendered a plea of guilty to both charges which the Resident magistrate accepted.

The court on appeal held section 99(1) section 193(1) of criminal procedure Act also provides an exception enabling an accused person to tender an oral plea of guilty through an advocate in cases coming within the scope of the sub- section.

c) The following are ways a plea can be made in a case where a charge contains several courts;

      Where the accused is charged in several courts a separate plea must be taken from each court, then if the accused plead guilty to one count it is proper for the magistrate to postpone the sentence on that count until the hearing of the second count[16]. The counts must have clear indications or narration on the matter concerned the nature of the offence and must comply with the offence committed which is punishable under the law. Therefore if the count did not contain clear offence, the accused may plea not guilty and also the conviction and sentences will be quashed.

      The above explanation was supported in the case of Bandama Johson Mahindi V R[17] where the accused was convicted on five counts of obtaining money by false pretences. None of the counts set out the nature of the false pretense it was held that the charge was clearly defective because of the omission. The conviction and sentence were quashed. Also it is important for the charges to be contained in separate counts, as it shown in the case of Hamis s/o Bakari VR[18] it was held by Mustafa J, where the accused was convicted of obtaining money by false pretense with intent to defraud from 13 different persons the charges were all contained in single count it was held that; the charges have been in 13 separate counts CC F.. P.C 51, Here the appellant would not know how the details of the charge and in fact as to what the whole case was about. Under section 228 (1) of the criminal procedure Act. The substance of the charge shall be stated to the accused person by the court and shall be asked whether he admits or denies the truth of the charge. Therefore, the accused is suppose to plea each counts in the charge contains several counts and each count have its own judgment 

d) A plea is made in the following ways where several persons are charged jointly in a case.

       Where there are several accused persons charged jointly and some of them plead guilty the proper procedure is to convict those who plead guilty and proceed to try the others the issue whether they should straight away will depend on whether or not the prosecution intends to call them as witness.

            In the case of RV. Payne[19], the appellant and two others were charged with house breaking. The appellant pleaded guilty and other men not guilty sentence of two years imprisonment was passed on the appellant at once, the other men being put back trial and sentence to twelve months and fifteen months respectively. On appeal it was held: “Where several people are charged jointly on an indictment and one pleads guilty and the other not guilty sentence should not at once be passed on him who pleads guilty.  But should be postponed until after the others have been tried so that the court being by that time in possession of the facts relatively to all prisoners can properly assess the respective degrees of guilty among them”.The court observed that this discretion would not apply in the exceptional case where a man who pleads guilty it so be called as witness such a person should be sentenced at once so that there can be no suspicions that  his evidence is colored by the fact that he hopes to get a lighter sentence by reason of other evidence he gives.

e) The following are the consequences of failing to ask the accused person to plead to the charge.

      It is the requirement of the law that after a charge has been read over to the accused person is not complete until he has pleaded to the charge. Where no plea is taken the trial is a nullity. The omission to take a plea is an incurable irregularity. In the case of Stephen s/o Simbila VR[20] the appellant was charged with and convicted of stealing by a person employed in the public c/ s 270 & 265 penal code. He did not enter a plea in the court to the charge but was sentenced to imprisonment and ordered to suffer corporal punishment the appealed against the conviction had sentenced. It was held that, it is established law that if no plea is taken before trial commence as such trial would be null and void.

      Failure to take a plea at all as said above is as incurable irregularity what the court can do on appeal or revision is to order a retrial

      It has further been argued that the magistrate may take a plea a fresh even it the accused plea had been taken on the previous day by the different magistrate.

     However failure to take a plea a fresh where he case has been postponed and the accused appeared before another magistrate is not fatal it cannot beside to contravene the  provision of section 228 of criminal procedure Act.

     Moreover, failure to take a plea to the accused person is against the rule of natural justice that a man must not be condemned unheard and he cannot be asked to defend himself on an accusation of which he is not aware, that is necessary the charge to be read Over and explained to the accused person

Conclusion

       In Conclusion for the sake of completeness, three other pleas should be mentioned, although they are hardly used in practice they include plea of pardon granted by the crown, plea to jurisdiction which must be in writing and a demurrer which is like plea to jurisdiction is an objection to wording of an indictment.

                                                   REFERENCES

STATUTE (S):

CRIMINAL PROCEDURE ACT CAP 20 R.E 2002 ( TANZANIA)

BOOKS:

Jonathan herring Criminal law 4^th adition, palgrave macmillian 2005.

John Sprack; Apractical Approach to criminal procedure 10^th Edition, Oxford university press 2004.

Kelkars, R.K Criminal procedure, 4^th Edition Easterm Book company 1977.

Chipeta ,B.O, Magistrate Manual, T.M.P. Book Department Tabora- Tanzania

MANUALS:

Mshana .S Traning Manual for certificate in law

Mchome S.E, Criminal law as procedure part three, open university of Tanzania

Others:

Www.Wikipedia.free ancydopedia.com

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[1] . Mchome at pg 109

[2] Pg 1189

[3]  The wiki: pedias free encyclopedia

[4] Section 228 (1) Of criminal procedure Act ( CAP 20 R.E 2002)

[5]  R.V Lee kun (1916) 11 Cr. App . R. 293, pg 300.

[6] Opcit. 4

[7] ( 1972) 56 cr. App. R 196

[8] ( 1962) EA 643.

[9] Opcit.6.

[10] (1993) TLR 109.

[11] (1973) EA 445.

[12] (1976)  127 N0 54.

[13] (1056) 23 E.A.C.A 562

[14] (1959) E.A 1094.

[15]  ( 1953) 10  EAOA 161

[16] Training Manual for certificate in Law

[17] (1987) HCD 65

[18] Ibid 652-m 66.

[19] (1950) ALL E. R 102.

[20] ( 1971) HCD N0 433