JONAS NKIZE v REPUBLIC 1992 TLR 213 (HC)

 

JONAS NKIZE v REPUBLIC 1992 TLR 213 (HC)

Court High Court of Tanzania - Tabora

Judge Katiti J

19 August 1992 E

Flynote

Criminal Practice and Procedure - Evidence emanating from the defence - Whether

safe to sustain a conviction.

Criminal Practice and Procedure - Onus of proving the charge - Whether by

prosecution or the accused.

Criminal Practice and Procedure - Prima facie case - When established, and what F

should a trial court do if not established - S.230 of the Criminal Procedure Act 1985.

Evidence - Of co-accused - Whether admissible - How to approach and utilize it.

-Headnote

Before the Kigoma District Court were Jonas Nkize the Appellant and two others G

charged with stealing c/s 258 and 265 of the Penal Code, Cap 16. In the alternative

Jonas Nkize as a third accused was charged with obtaining goods by false pretences c/s

302 of the Penal Code, Cap 16. H

The arraignment of the appellant in the said court was prompted by the second

accused who implicated the appellant in his sworn defence. He called several

witnesses to support his story against the appellant, the prosecution evidence having

failed to touch him. Relying on the sworn evidence of the second accused as

confirmed by the I witnesses he called the trial Magistrate acquitted

1992 TLR p214

KATIT J

the second and first accuseds and proceeded to convict the appellant on the second A

charge on the strength of the same evidence. On appeal to the High Court;

Held: (i) While the trial Magistrate has to look at the whole evidence in answering

the issue of guilt, such evidence must be there first, including evidence against the B

accused, adduced by the prosecution;

(ii) the general rule in criminal prosecution that the onus of proving the

charge against the accused beyond reasonable doubt lies on the prosecution, is part of

our law, and forgetting or ignoring it is unforgivable, and is a peril not worth taking;

C

(iii) the burden of proving the charge against the accused is on the

prosecution, so that the trial Magistrate, to say he cannot depend on the prosecution

evidence, is to read upside down the authorities, and if it is by design, then it is

strange and unjudicial behaviour; D

(iv) the trial Court is enjoined to direct its minds to the evidence adduced by

the prosecution when it has closed its case, and if it appears to the court that, the case

is not made out against the accused person sufficiently to require him to make a

defence, the court shall dismiss the charge and acquit the accused person; E

(v) where in joint trial, an accused goes into a witness box and gives testimony,

such evidence becomes evidence for all purposes, including being evidence against his

co-accused;

(vi) where the co-accused's evidence implicating the co-accused is tainted by

F improper motive, such evidence should be received with caution.

Case Information

Appeal allowed.

Mr. Boaz and Mr. Osward for the Republic G

[zJDz]Judgment

Katiti, J.: Witnessing the prosecution of Jonas Nkize, the appellant, for the offence of

stealing c/s 265 of the Penal Code Cap. 16, or in alternative, obtaining goods by false

pretences c/s 302 of the Penal Code Cap. 16 of the Law, was Kigoma District H

Court, which ultimately found the appellant guilty, of the alternative count -

obtaining goods by false pretences c/s 302 of the Penal Code Cap. 16 of the Laws, and

accordingly convicted him. The appellant was sentenced to five years imprisonment,

a sentence which was followed by the statutory compensation order, that the said I

appellant,

1992 TLR p215

KATIT J

shall compensate the Kigoma R.T.C., the value of 100 cartons found stolen. A

The appellant aggrieved, has appealed to this Court, contending that he was unfairly

convicted, as he himself was never involved, in the charged crime. The learned State

Attorney Mr. Boaz, declined to support conviction, submitting, as he did, that there

B was no evidence sufficient enough to sustain conviction. The evidence shall need

to be scrutinized, and revisited. The genetic starting point here, is that by the way of

two Kigoma RTC Internal Stock Transfer Vouchers, (ISTV) numbered, No. 7617 of

29/9/1988, and No. 624 of 17/10/1988, Exhibits P1 and P2 respectively, one C

hundred, and three hundred cartons of match boxes, (Kibo brand), respectively, were

taken from the RTC store, or godown, then manned by the 2nd accused. The former

ISTV consignment, was purportedly issued for MANYOVU RTC retail shop, and the

latter, for MWANDIGA RTC Retail shop. And it remains an undeniable fact, on the

D evidence by PW.1 Aron Kimerei, the then Kigoma RTC general Manager and

PW.2 B 857 DST Issa, and rightly found by the trial Magistrate, that not a single

carton of match boxes, reached their assigned destinations, i.e. Manyovu RTC Retail

shop, nor MWANDIGA RTC retail shop, although they were taken out of the

godown. On the E allegations, that Exhibits P1 and P2, the Internal Stock Transfer

Vouchers, (ISTV), had been issued by the 1st accused Boniface Mhehe, the Marketing

Manager, and that the same cartons were taken out of the Kibirizi godown, whose

keeper was Hem Shuba, the two were charged, as first and second accuseds

respectively. And, because F (ISTV) No. 7617, had in the line "COLLECTED by", J.

NKIZES, inserted therein, the person by this name, was arrested and charged as the

third accused, and is the appellant charged as above. It is pertinent, to point out here,

that the handwriting Expert report Exh. PV reads: G

Hivyo ninayo maoni kwamba sahihi hiyo inayobishaniwa iliyopo penye

kielezo "A 4" "Sehemu ya "Collected by " na alama "S" siyo sahihi yake halisi" H

However, it was the 2nd accused who implicated the appellant, in his sworn defence,

and called DW.4 Athuman Makongoro, DW.5 Issa Ndiyunviye, DW.6 Ally Dogo, to

support the 2nd accused's evidence against the appellant, the prosecution evidence

having failed to touch the appellant, and at the stage he implicated the appellant, the

I second accused had this to say, and I quote:

1992 TLR p216

KATIT J

A The ISTV was written by Masaba, I took it and went to Kibirizi, then when I

was coming down, I saw the third accused, and the driver of motor vehicle 3187

(Rombo Safari) having parked their motor vehicle under a tree. I opened the godown,

and the two brought their motor vehicle. The third accused gave me the ISTV,

and a piece of paper. I asked the B third accused as to which country was he taking

the goods to. But I knew the standing instructions, that anybody who comes with

papers ISTV was not allowed to be queried.... After loading their motor vehicle, they

drove off. The porters who loaded the motor C vehicle are present with the RTC,

they can testify, if they are needed. It was the first ISTV, coming to the 2nd ISTV

which had two hundred cartons of match boxes.

Such evidence, as apparently confirmed by the evidence of DW.4, DW.5, DW.6, D

influenced the trial Magistrate to acquit, the first and second accused persons, but to

convict the appellant, of obtaining goods by false pretences c/s 302 of the Penal Code

Cap. 16. In approaching to convict, the trial Magistrate, did appreciate, that the

evidence implicating the appellant came from the defence. He appreciated too, how

convictions emanating therefrom, are unsafe, but nevertheless proceeded to convict

E arguing, "I think the magistrate has to look at the overall evidence, rather than

depend on the prosecution, if justice is to be done." (The under-lining is mine).

With due respect, to the trial Magistrate, the underlined above imputed to his pen, is

F inaccurate in law and grossly, if I may add. While, the trial Magistrate, has to look

at the whole evidence, in answering the issue of guilt, such evidence must be there

first, - including evidence against the accused, adduced by the prosecution, which is

supposed to prove the case beyond reasonable doubt. It is question of burden of proof,

and G upon whom it lies. The day shall never come, not in my life time, when such

highly priced principles, of criminal prosecution, will be as simplifically thrown into

the such dirty dust bin of convenience. That, the general rule in criminal prosecution,

the onus H of proving the charge against the accused, beyond reasonable doubt lies

on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable,

and is a peril not worth taking. Was it not in the case of Woolmington v DPP [1935]

25 Cr. App. R. 72, when Lord Sankey L.C. then said: I

1992 TLR p217

KATIT J

A ... if at any period of trial, it was permissible for the judge to rule that the

prosecution had established its case, and that the onus was shifted on the prisoner to

prove that he was not guilty, and that unless he discharged that onus, the prosecution

was entitled to succeed, it would be unabling the judge in such a case to say, that the

jury must in law, B find the prisoner guilty, and so make the judge decide the case,

and not the jury, which is not the common law. It would be an entirely different case,

from those exceptional instances, of special verdicts, where a judge asks the jury to

find certain facts, and directs them that on such facts, the prosecution is entitled to

succeed. Indeed, a consideration of C such special verdicts show, that it is not till the

end of the evidence, that a verdict can properly be found, and that at the end of the

evidence it is not for the prisoner to establish his innocence, but for the prosecution

to establish his guilt. Just as there is evidence, on D behalf of the prosecution, so

there may be evidence on behalf of the prisoner, which cause a doubt as to his guilt.

In either case, he is entitled to the benefit of the doubt. But while the prosecution

must prove the guilt of the prisoner, there is no such burden laid on the prisoner to

prove his innocence, and it is sufficient for him to raise a doubt, as to his E guilt; he

is not bound to satisfy the jury of his innocence ... Throughout the web of the English

criminal law, one golden thread, is always to be seen, that it is the duty of the

prosecution to prove the prisoner's guilt ... No matter what the charge, or where the

trial, the principle that the prosecution must prove the guilt of the prisoner is part of

the F common law of English, and no attempt to whittle it down can be entertained.

And in the case of Mancini v DPP [1941] 3 All E.R. [1941] 3 All ER 272 Viscount

Simon LC, added: G

.... I would formulate the following propositions: Woolmington's case, is

concerned with explaining, and reinforcing the rule, that the prosecution must prove

the charge it makes, beyond reasonable doubt, and consequently, that if, on the

material before the jury, H there is a reasonable doubt, the prisoner should have the

benefit of it. The rule is general application, in all charges, under the criminal law.

The only exceptions arise, as explained in Woolmington's case, in the defence of

insanity, and in offences where onus of proof is I specially dealt with by statute.

1992 TLR p218

KATIT J

And back here, we have cases, like Moshi d/o Rajabu v Republic [1967] H.C.D. A No.

384, that, the burden of proving the charge against the accused is on the prosecution

so that the trial Magistrate, to say he cannot depend on the prosecution evidence, is to

read the upside down the authorities - and if it is by design, then it is strange and

unjudicial behaviour. B

Again, in the same vein of caring about the law, if the trial magistrate had exercised a

little care, to acquaint himself with the provisions of section 230 of the Criminal

Procedure Act 1985, he would have discovered that the trial Court is enjoined to

direct its minds to the evidence adduced by the prosecution when it has closed its

case, and C if it appears to the Court that, "the case is not made out against the

accused person, sufficiently to require him to make a defence, either, in relation to

the offence, with which he is charged, or in relation to any other offence of which

under provisions of section 312 - 321 - he is liable to be convicted, and shall dismiss

the charge, and acquit the D accused person. Thus, the subordinate trial Court is

enjoined at the closure of the prosecution case, to see whether the crime charged, or

such offence as is convictable, in the alternative, under Sections 312 - 321 of the CPA

1985, has been established, E and if it has not, the court has to acquit the accused.

Thus the trial Magistrate's observation that is not necessary to depend on the

prosecution case, is inadmissible and extravagant. In fact, if the trial Magistrate had

looked upon the provisions, and I note the said provisions are not even referred to, in

the proceedings, he would have noted, F that, by the closure of the prosecutions

case, there had not been, an iota of evidence implicating the appellant - and the

provisions of Section 230 of the Criminal Procedure Act 1985, would have carried the

day triumphantly. That is, if upon the administration of Section 230 of the Criminal

Procedure Act 1985, the offence as charged, or as G alternatively convictable under

Sections 312 - 321, of the CPA 1985, is not made out, or established, it is mandatory

for the trial Court, to dismiss the charge, and acquit the accused person. Of course the

trial magistrate, did not acquit the accused in this case.

When all is said and done above, we must concede, that the evidence by the second

H accused, and his defence witnesses - DW.4, DW.5, DW.6 implicated the appellant,

as having in September 1988 loaded a hundred cartons at RTC godown, carried and

left with the same. This evidence, is not useless in law, I must concede. While it is a

fundamental rule of evidence, that statements made by co-accused, statements made

I in the course of, and in pursuance of a

1992 TLR p219

KATIT J

joint criminal enterprise, which the accused was a party excepted, are not evidence A

against the co-accused, unless such co-accused, has expressly, or by implication

adopted the same as his own, such statements assume a different dimension, when

given sworn in the course of a trial in the presence of an accused. That, is, where in

joint trial, an accused goes into a witness box, and gives testimony, such evidence he

has given, B becomes evidence for all purposes, including being evidence against his

co-accused. See R. v Rudd, [1948], 32 Cr. App. R 138.

How such evidence should be approached, and utilised is well settled. In the case of

R. v Pratter [1960] 44 Cr. App. R. 83, as qualified, in R. v Reck (1982) 74 Cr. App. C

R. 221, it was held that where the co-accused's evidence implicating the co-accuseds,

is tainted by improper motive, as having a purpose of its own to serve, it should be

received with caution, and accomplice warning may be give, if there is basis, for

suggesting that said co-accused, was participant in the crime, or was in any-way D

involved in the crime the subject matter, of the trial. That is, co-accused evidence is

suspect for many reasons i.e. holier that thou mentality, expectation of elemency, or

mercy, etc.

In this case, with a lot of respect, though the evidence by DW.2, and the witnesses E

called by him, is indeed implicating the appellant, the said evidence, is also raising

questions, that are post-trial difficult to answer. First, although the offences charged,

were allegedly committed on the 29/9/1988, the said witnesses gave damning

evidence on 28/4/1990, over a year later, why they were not available as prosecution

F witnesses, is surprising, and why, the 2nd accused had not disclosed their

whereabouts, is a piece of curiosity, a gordian knot. Second, the ISTV No. 7617

Exhibit P1, that the 2nd accused handled first, at the Kibirizi godown, was for

transferring hundred G cartons of Kibo Match boxes, from such godown, to

Manyovu RTC Retail shop, but according to the 2nd accused, "Asked the third

accused, as to which country he was taking the goods to. But I knew the standing

instructions, that anybody who comes with ISTV, was not to be queried." But with

respect to the 2nd accused, if the ISTV Exhibit H P.1, he was given, was to transfer

match boxes from Kibirizi to Manyovu, as it does in equivocally speak by itself, and

endorsed, passed by the 2nd accused himself, and the carrier, obviously doing it, on

behalf of the said RTC, I cannot see how the question, which country the carrier was

taking the goods, arises? I cannot see how, the 2nd I accused, could have received

instructions, not to query under the circumstances!

1992 TLR p220

Third, the 2nd accused said in court, in Examination - In-Chief, and I am sure he had

A encouraged his witnesses to say so, that, the used motor vehicle was No. TB 3187,

Rombo Safari, but in the ISTV Exhibit P.1, the name of carrier is shown as TB 3178,

after an unsuccessful erasure of another 3178. If according the 2nd accused, it was B

motor vehicle TB 3187, that carried the charged goods, as he testified in evidence in

chief, then why did he, if he did, insert TB 3178 in the ISTV Exhibit P.1, and where is

the ISTV, if any, that was used by motor vehicle 3187? From the above, it is my view,

that the innocence that the 2nd accused boldly put on his face, is questionable, as the

C legal guilt of the appellant becomes even more doubtful. The 2nd accused, may

have been improperly motivated, if not an accomplice, and his evidence is very

suspect, and we have no corroboration on the same. In the event, the appeal is

allowed, conviction quashed, and sentence set aside. The appellant to be released

forthwith, unless he is otherwise legally held. D

Appeal allowed.

1992 TLR p220

E