MADUHU MASELE v REPUBLIC 1991 TLR 143 (HC)

 

MADUHU MASELE v REPUBLIC 1991 TLR 143 (HC)

Court High Court of Tanzania - Tabora

Judge Katiti J

2nd October, 1991

Flynote

Criminal Practice and Procedure - Pleas - Plea of autrefois acquit - By whom should

the plea be made - At what stage - B On whom does the onus lie -The quantum of

proof required - S. 137 Criminal Procedure Act 1985.

-Headnote

The appellant, Maduhu Masele, was indicted and prosecuted before the Maswa

District Court for the offence of C cattle theft c/s 265 and 268 of the Penal Code,

Cap. 16. He was convicted and sentenced to six years imprisonment.

Aggrieved with conviction and sentence the appellant preferred an appeal in which,

while protesting his innocence, D he also raised the plea of autrefois acquit.

Held: (i) It is the duty of the accused to plead autrefois acquit in order to derive the

advantage or benefit thereof;

(ii) an accused person can raise the plea at any time, either as a plea in the bar

to the second prosecution, E or, at any stage in the proceedings, before the closure of

the defence case;

(iii) it is the general rule that in pleas of autrefois acquit or convict, the burden

of proof, (onus probandi) lies on the party who asserts the affirmative of the issue, or

question in dispute. F

Case Information

Appeal allowed.

Komba, for the respondent G

[zJDz]Judgment

Katiti, J.: Before Maswa District Court, was Maduhu Masele hereafter to be called the

appellant, charged with the offence of cattle theft c/s 265 and 268 of the Penal Code

Cap. 16. At the end of the day, the said appellant was convicted as charged, and

sentenced to six years imprisonment. Aggrieved, the said appellant is appealing

against H conviction. While the appellant maintained that he never stole the cattle,

he pleaded autrefois acquit - that having been previously acquitted, in RM's Criminal

Case No. 107/1987, the certified copy of proceedings of which, he tendered as Exh.

D1, he contended, he could not be re-charged or tried again, in Cr. Case 149/1989, on

the same I facts, for the same offence.

1991 TLR p144

KATITI J

A The evidence fluidish as it appears, is as follows. The complainant, PW1 Kushoka

Butondo, testified to have discovered theft of his four heads of cattle, that each had a

KB brand mark - the abbreviation of his name, above mentioned. A year after, PW1

claimed that, the child of the Francis Mangale was found with one of the said cattle,

and the Kraal of one Magweshi John, we only learn from one Deshi, who did not give

evidence, that the said cow B had been taken to him "by some people", there being

no mention of the appellant. But cross - examined by the appellant, the same PW1

said, "I found it in the heads of the Police". But on heels, was PW.2 Raphael s/o C

Makwase, who told the court, that, on 17/10/1986 the appellant having attracted

suspicion by offering to sell a cow, he had in his possession at Shs. 4,000/=, the Police,

in particular PW3 No. C 5180 PC ALEX, was informed and hence the arrest of the

appellant, on the 28/12/1988. The appellant defending himself, maintained that one

woman D having entrusted him with her cattle, he was arrested, prosecuted, but

acquitted. He added, that, this case involves the same subject matter, same witnesses

and dates, as were in the prior, or previous case, vide which he was acquitted, hence

the plea. He tendered to certified copy of the previous proceedings as Exh. D1. The

above E evidence constituted the foundation of the conviction, in the present case.

With respect, testing the foundation on which the conviction is built, I get irresistibly

the conviction, that the evidence in its own element is quite fluidish and tenuous. If

one Francis Magweshi's child, was found in possession of the F cow, in the kraal of

one Magweshi, how come, that none of them gave evidence, is tantalizing in the

direction of confusion, and is incomprehensible. Again one Deshi, who too did not

give evidence, emerged from no where, G although he is reported by PW1, to have

said that the cow "was taken to him by some people". The appellant curiously was

not mentioned by this Deshi, nor by PW1 - of course the statement by the said Deshi,

being hopelessly hear-say-adding no valuable contribution, to the case.

H Coming to the testimony of PW2, that on the 17th day of October, 1986 the

appellant offered to him, a cow for sale, I find myself in an embroiling quagmire,

unlike the trial Magistrate. For, if as per PW1 Kushoka Butondo, his four heads of

cattle were stolen on the 20/10/1986, the appellant could not have offered one of

them for sale on the I 17/10/1986, as this was before the event - theft of the cattle.

But curiously, PW3 No. 5180 PC ALEX told the Court, that he arrested the appellant

while in possession of the cow on the

1991 TLR p145

KATITI J

28/12/1988, posing a question that, if PW3 Alex received a report from PW2 on the

17/10/1986, the day appellant A is alleged to have offered the cow to PW2 for sale,

how the arrest of the appellant, could have taken place on the 28/12/1988, and not on

the same 17/10/1986, is derogating from the truth. From the above, I find myself

satisfied, that the quality of evidence on recorded, is not capable of proving the

charge beyond reasonable doubt, and in my B view, no reasonable criminal justice

system, can found conviction on such evidence.

It is without prejudice to the generality of the above, good dutiful to remember, that

the appellant did traversely plead, autrefois acquit - that he had been previously tried

and acquitted, for the same offence, by the very Court - C pleading in bar to

subsequent criminal prosecution. Obviously this plea softly lands us on the provisions

of Section 137 of the Criminal Procedure Act 1985, that from the top of the hill,

proclaims thus: D

A person who has once been tried by a court of competent jurisdiction for

offence and convicted, or acquitted of such offence, shall while such conviction, or

acquittal, has not been reversed or set aside, not be liable to be tried again, on the

same facts E for the same offence.

The above provisions do proclaim a principle, that places a bar, or an injunction

against prosecuting a person, who has previously been convicted/acquitted, by a court

of competent jurisdiction, again, on the same facts and for the F same offence, unless

the said previous conviction, or acquittal, has been reversed, or set aside. The

governing principles in so far as the pleas of autrefois acquit/convict, judicially

educative and persuasive were pictorially considered and announced, by no less a

judicial brain than, Lord Morris of Borth - Y - Best, in the case of G Connelly v DPP,

[1964] 2 All E.R. 401, at page 412 thus:

I pass, therefore to a consideration of the questions which arise concerning the

plea of autrefois acquit. In giving my reasons H for my view that the direction given

by the learned Judge was entirely correct. I propose to examine some of the

authorities of, and to state what I think, are the governing principles.

In my view both principle and authority establish: (i) that a man cannot be

tried for a crime in respect of which he has I

1991 TLR p146

KATITI J

A previously been acquitted, or convicted; (ii) that a man cannot be tried for a

crime in respect of which he could on some previous indictment, have been

convicted, (iii) that the same rule applies, if the crime in respect of which he is being

charged is in effect the same, or is substantially the same, as either the principal, or a

different crime, in respect of which, he has B been acquitted, or could have been

convicted, or has been convicted; (iv) that one test, whether the rule applies, is

whether the evidence which is necessary to support the second indictment, or

whether the facts which constitute the second offence would have been sufficient to

procure a legal conviction, on the first indictment, either,as to the offence charged, or

as to the C offence, of which on the indictment, the accused could have been found

guilty, (v) that the test must be subject to the provision, that the offence charged in

the second indictment, had in fact been committed at the time of the first charge, (vi)

that an a plea of autrefois acquit or autrefois convict, a man is not restricted to a

comparison between the later indictment, D and some previous indictment, or the

records of the court, but that he may prove by evidence, all such questions as to the

identify of persons, dates and facts, as are necessary to enable him to show, that he is

being charged with an offence, which is either the same, or substantially the same, as

one in respect of which he could have been acquitted, or convicted, or as E one, in

respect of which, he could have been convicted, (vii) that what has to be considered,

is whether the crime, or offence F charged, in the later indictment, is the same, or is

in effect, or is substantially the same, as the crime charged, (or in respect of which

there could have been a conviction), in a former indictment, and that it is immaterial

that the facts under G examination, or the witnesses being called in the later

proceedings, are the same as those in some earlier proceedings;

The principles enunciated in the above case on and about pleas of autrefois

acquit/convict, have found their way H into our statute book - as demonstrated by

section 137 of the Criminal Procedure Act 1985 above. What therefore for our

purposes is principally deducible from the cited provisions are, - one that a person

cannot be tried again for the crime in respect of which he has previously been

acquitted or convicted, by a court of competent jurisdiction, I unless such acquittal

or conviction, has been reversed or set aside, two, whether the plea of autrefois

acquit/convict, applies, the test of

1991 TLR p147

KATITI J

whether, the evidence which is necessary to support the second prosecution, or

whether the facts that constitute the A second, or subsequent offence, would have

been enough to procure a legal conviction or acquittal, on the first prosecution i.e.

that the offence charged in the second indictment had in fact been committed at the

time of the first charge. B

The autrefois convict/acquit may in my view be proved, or established by evidence

rendering comparison between the later indictment and some previous indictment

possible i.e.

(i)Comparison of charges or indictments, where possible, by the trial court on the

invitation and initiative of the C accused.

(ii)By tendering a certificate of conviction, or as the case may be, of acquittal, relating

to that offence, provided the person named in the certificate, as having been

convicted or acquitted, of the offence, is the person whose D conviction or acquittal

of the offence, is to be proved.

(iii)By tendering and reference to court records, by the clerk of the court, or another

officer having custody of the record of the court, where such conviction or acquittal

took place, - with sufficient proof of the identity of the person convicted, or

acquitted. E

(iv)By adducing such other evidence showing all such questions as to identify of the

accused, date, and facts as are necessary to enable him to show that he is being

charged with an offence, which is either the same or substantially the same, as the

one in respect of which he has been acquitted or convicted. F

The above principles, do pose questions like (i) by whom should the plan of autrefois

acquit be pleaded, obvious though the question seems to be, (ii) at what stage should

such plea be staged, (iii) on whom does the onus lie, (vi) and the quantum of proof

thereof. Considering the above seriatim, and considering that the fundamental

principle G here, is that a person is not be prosecuted twice for the same offence,

and possibly, the latter being inherently within the knowledge of the accused, then it

is the accused person who should plead the same, in order to derive H advantage or

benefit there from. Giving serious thought to the question as to the stage, in the

proceedings, when the plea could be staged, I think, the question should be

approached, with liberality, and in my view the accused person may raise the plea at

any time, either as a plea in the bar to the second prosecution, or, at any stage in the I

proceedings, before the closure of the defence case. And, as the provisions don't

1991 TLR p148

A prescribe, any procedure to be adopted, then obviously the plea may, either be

formal or informal, by the accused person. And delving into the issue of burden of

proof, an important aspect, I am given to think and repeat, what is trite law, that, the

general rule is that the burden of proof, (onus probandi) lies on the party who asserts

the B affirmative of the issue, or question, in dispute. Relevantly associated here

therefore, and in this case, the burden of proof lies upon the accused to prove what he

asserts - that he previously been acquitted or convicted on the same facts, and of same

offence, by a court of competent jurisdiction, and this is only on the balance of

probabilities - see C R. v Coughlan and Young (1976) 63 Cr. App. R 33.

Retreating back, or coming home and to the case, it is clear, that the appellant having

pleaded autrefois acquit, in D his defence produced a certified copy of the

proceedings vide which the appellant was acquitted, on no case to answer under

Section 230 of the Criminal Procedure Act 1985. The trial Magistrate rightly found

the facts in the earlier case Cr. Case No. 100/1987, totally different from the case

before him, and like the trial Magistrate I would E rule by applying the above and

hereby rule that, the plea of autrefois acquit could not, and cannot succeed at all.

But given that the prosecution evidence was so weak and fluidish, the conviction is

usage to uphold. I therefore allow the appeal, quash conviction, and set aside the

sentence, the appellant to be released forthwith, unless he is otherwise legally held.

F Appeal allowed.

1991 TLR p148

G