DAWIDO QUMUNGA v REPUBLIC 1993 TLR 120 (CA)

 DAWIDO QUMUNGA v REPUBLIC 1993 TLR 120 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

F CRIMINAL APPEAL NO. 30 OF 1993

21 May, 1993

G (From the conviction of the High Court of Tanzania at Arusha, Munuo, J.)

Flynote

Legal Assistance - Accused charged with murder - Court allows trial to proceed

without the accused having the H assistance of counsel - Whether trial fair and just.

Criminal Practice and Procedure - Calling of doctor who performed postmortem

examination on the body of the deceased - Right of accused to be informed and to

decide whether or not he wants the doctor to be called - I Section 291 of the

Criminal Procedure Act 1985.

1993 TLR p121

-Headnote

The appellant was charged and convicted of murder by the High Court sitting at

Arusha. He was A sentenced to death. He appealed against both conviction and

sentence arguing, inter alia, that he had to prosecute his defence without legal

assistance. In addition counsel for the appellant challenged the High Court decision

on the ground that the doctor who performed postmortem on the body of the

deceased was not called to testify and therefore there was non-compliance with the

provisions of B section 291 of the Criminal Procedure Act, 1985. In addition it was

pointed out that during the trial the accused was not informed by the Court of his

right to have the doctor called to testify. The Court of Appeal considered all the

points raised.

Held: (i) The provisions of section 291 Criminal Procedure Code are mandatory

and require that an C accused must be informed about his right to have the doctor

who performed the postmortem called to testify in order to enable him decide

whether or not he wants the doctor to be called;

(ii) The absence of counsel in a trial involving a charge carrying the death

penalty deprived the Trial Court of assistance so vital that it cannot be said that the

appellant had a fair and just trial. D

Case Information

Conviction quashed, sentence set aside, retrial before another judge ordered.

Case referred to:

1. Kinyori s/o Karuditu v. Reginam [1956] 23 EACA 480.

Merinyo, for the appellant. E

Mrs. Sumari, for the respondent.

[zJDz]Judgment

Mfalali, J.A., delivered the following considered judgment of the Court: F

The appellant Dawido Qumunga was charged and convicted of murder by the High

Court sitting at Arusha (Justice Mrs Munuo). Upon this conviction he was by

operation of law sentenced to death. He lodged his appeal against both conviction and

sentence.

In this appeal, Mr Merinyo, Counsel for the appellant argued two grounds of appeal.

Firstly, that the G learned Judge erred in law in not summoning to testify during the

trial the doctor who performed the postmortem examination on the body of the

deceased, and secondly that the honourable Judge erred in her assessment of the

evidence relating to the causation of death otherwise she would have held H that the

cause of death had not been established.

Considering the view we have taken of the entire proceedings in the High Court, we

do not intend to go into the details of the merits of the case but we wish to state that

the complaints embodied in the two grounds of appeal are part of a larger error

committed by the learned Trial Judge. This error I consisted in allowing the trial to

1993 TLR p122

MFALALI JA

A proceed without the appellant having the assistance of counsel. When the trial of

the appellant opened on 28 September 1992, the following exchange took place

between the Court and the accused:

Court to Accused:

B Mr Merinyo, learned advocate who was assigned the defence brief under legal

aid is reported ill, so he cannot appear. The case will therefore have to be adjourned

to another session.

Accused:

I have been in custody for a long time. Let the case proceed without defence

counsel.

C Order:

Trial to proceed.

There was not the slightest attempt by the Court to dissuade the appellant from this

prayer and warn D him of the dangers inherent in going it alone in such a serious

charge. The Court did not warn the appellant of the pitfalls that awaited him in what

to him was surely an unsurveyed terrain. The Court let him walk the unsurveyed

terrain, the consequences as expected in such a serious charge were disastrous. In the

course of the trial, he was faced with three legal issues which without legal E

assistance proved too much not only for him but for the Court which also had to

proceed without the benefit of legal assistance from the defence side.

The first problem was that raised in the first ground of appeal namely the non-calling

of the doctor F who performed the post mortem examination on the body of the

deceased. This involved non-compliance with s 291 of the Criminal Procedure Act

1985, which provides as follows:

`Section 291 -

G (1) In any trial before the High Court, any document purporting to be a

report signed by a medical witness upon a purely medical or surgical matter shall be

receivable in evidence save that this subsection shall not apply unless reasonable

notice of the intention to produce the document at the trial, together with a copy of

the H document has been given to the accused or his advocate.

. . .

(3) Where any such evidence is received in evidence the Court may, if it

thinks fit, and shall, if so requested by the accused or his advocate, summon and

examine or make available for cross-examination, the person I who made the report,

and the Court shall inform the accused of his right to require the

1993 TLR p123

MFALALI JA

person who made the report to be summoned in accordance with the

provision of this subsection.' A

This is a mandatory legal provision requiring that an accused must be informed of

these provisions to enable him decide whether or not he wants the doctor to be

called. We think that the right created B by this section is so vital that at every trial

where the accused is unrepresented the Court must make it known to the accused.

This is because the presence of the doctor in the witness box can make a difference

between a conviction for murder, manslaughter or even an acquittal depending on his

elucidation of the cause of death recorded in the post mortem report. This brings us to

the C second problem faced by the appellant at the trial, namely the deceased's cause

of death. There is so much that was left unsaid in the post mortem report exh P1 that

only the physical presence of the doctor in the witness box could have cleared or

filled the empty gaps. But as we have pointed out, all D this was unsurveyed terrain

for the appellant. How was he expected to know of his legal rights under s 291? We

are satisfied that had legal assistance been available to the appellant at the trial as it

was at the taking of the plea on 27 August 1991, the question of compliance with s

291 would have E been raised as it was on 27 August 1991 when Counsel gave notice

that at the trial the defence would require the physical attendance of the doctor who

performed the post mortem examination. When therefore the trial opened on 28

September 1992 without Defence Counsel, both the Court and the Defence side were

affected. There was no one to remind the Court of the mandatory provisions F of s

291.

The third problem was the conduct of the trial within a trial which arose in the

course of the hearing. The conduct and procedure of a trial within a trial along the

lines laid down by the Court of Appeal for G Eastern Africa in the case of Kinyori s/o

Karuditu v Reginam (1) is difficult enough even with the assistance of Counsel, how

much more difficult it must have been for an unassisted villager! We therefore ask

ourselves: would the presence of a doctor have made any difference? Would the H

presence of Counsel made any difference in the conduct of the appellant's defence as

a whole? If the answer to both these question is in the affirmative, then we cannot say

that the appellant had a fair and just trial. We are not saying that the absence of

defence Counsel rendered the trial null and void, we are saying that the absence of

Counsel in a trial involving a charge carrying the death I penalty, deprived the Trial

1993 TLR p124

MFALALI JA

A Court of assistance so vital that we are unable to say that the appellant had a fair

and just trial. We realise that the Trial Court acted on the wishes of the accused, who,

tired of being in remand for a long time, wanted as it were to get on with it and be

done with it as soon as possible. But the Court should not have lost sight of the fact

that hurried justice is as much denied as delayed justice.

B Mrs Sumari who appeared for the Republic informed us that the Republic did not

support the appellant's conviction almost for the same reasons advanced by her

colleague Counsel for the appellant. But she prayed either for a retrial of the appellant

or the calling of the doctor before this C Court to give additional evidence. On the

other hand Mr Merinyo thought that a retrial or calling the doctor would not serve

any useful purpose, so he called for the acquittal of the appellant.

D On our part, we think that considering other evidence on record, we do not think

acquitting the appellant would be fair and just. Since the non-calling of the doctor

was not the only legal problem facing the appellant at the trial, calling him to give

evidence before us, would not serve any purpose since the other problems we have

demonstrated caused by the absence of Defence Counsel at the E trial would remain

unattended.

In the circumstances we are satisfied that the appellant's conviction cannot be

supported. We accordingly quash it and set aside the sentence of death. But we order

the retrial of the appellant F before another judge according to law.

1993 TLR p125

A