BUHIMILA MAPEMBE v REPUBLIC 1988 TLR 174 (HC)

 

BUHIMILA MAPEMBE v REPUBLIC 1988 TLR 174 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

13 October, 1988

Flynote

Criminal Practice and Procedure - Plea - Accused pleads and states "It is true" - Whether the plea amounts to a plea of guilty.

1988 TLR p175

CHIPETA J

-Headnote

The appellant was charged with and convicted, purportedly on his own plea of guilty, of A the offence of being in possession of Government Trophy, to wit, a lion skin contrary to Paragraph 16(b) of the First Schedule to and sections 56(1) and 59(2) of the Economic and Organised Crime Control Act read together with sections 67(1) and (2) (a) and (g) of the Wildlife Conservation Act. When the charge was read over and explained to the accused, he was asked to plead and he said "It is true", and on being briefed of the facts he said "the facts are correct." The court entered a plea of guilty and convicted. He appealed to the High Court against the conviction arguing that the plea was equivocal.

Held:  (i) In any case in which a conviction is likely to proceed on a plea of guilty, it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every element of it unequivocally;

         (ii)The words "it is true" when used by an accused person may not necessarily amount to a plea of guilty, particulary where the offence is a technical one;

          (iii) in the present case, the facts given by the public prosecutor cannot be reasonably said to have amounted to full disclosure of the ingredients or elements of the offence, rather they appear to be more of an allegation that the appellant had possession of the lion skin;

         (iv) where the offence charged is rather technical and the accused is unrepresented, it is desirable that the technical words be adequately explained to the accused before he is asked to plead thereto.

Case Information

Appeal allowed.

Cases refer to:

1. Kato v R. [1971] HCD 297

2. Yonasani Egalu and Others v Republic 9 EACA 65

3. Hando Akunaay v R. 18 EACA 307

4. Sebastian Mpaka v R. [1975] LRT 28 H

5. Desai v R. [1971] HCD 297

Mr. Kwikwima for the appellant

Judgment

Chipeta, J.: The appellant Buhimila Mapembe, was charged with and convicted, purportedly on his own plea of guilty, of the offence of being in possession of Government Trophy contrary to paragraph 16(b) of the First Scheduled to and sections 56 (1) and 59(2) of the Economic and Organized Crime Control Act No. 13 of 1984 read together with sections 67(1) and (2) (a) and (2) of the Wildlife Conservation Act No. 12 of 1974.

The Republic alleged that on or about 22nd March, 1986 the appellant was found in "unlawful possession" of a Government Trophy, to wit, one lion skin valued at Shs. 5,000/=.

As to what transpired during the trial, I will let the trial court's record speak for itself:

2/10/87

Coram: A.E.A. Msigwa R.M.

Pros: Assistant Inspector Saidi

C.C. Isemalya

Accused: Present

Charge read over and explained to the accused who is asked to plead.

PLEA: "It is true"

Court: Entered as P.G.

Sd.

R.M.

P.P. The facts are as per charge sheet. The accused was arrested on 12/3/87 at 4.00 am. He was found with one lion skin, Exh. P.A. Sd. R.M. G 2/10/87

Accused: The facts are correct.

Court:I convict the accused on his own plea of guilty 

H Sd.

R.M.

2/10/87

The appellant was then sentenced to ten (10) years imprisonment.

During the hearing of this appeal, Mr. Kwikima, for the appellant submitted that the appellant's plea was equivocal in that the words "unlawful possession" were not explained to the appellant, and that had the court asked the appellant if he had a permit to possess the lion skin he would have produced one. Indeed, as it turned out, the appellant does possess a permit in respect of the lion skin duly issued by an administrative Officer, Shinyanga as per Exchequer Receipt No. 867197 dated 15/1/86.

There is ample authority for the proposition that the words "It is true" when used by an accused person may not necessarily amount to a plea of guilty, particularly where the offence is a technical one, (See Kato v R. [1971] H.C. & 364). It is the duty of a trial court in such a case to search mind that before entering a conviction on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every constituent. (See Desai v R. [1971] H.C.D. 297). In the words of the Court of Appeal for Eastern Africa D in the case of Yonasani Egalu and Others v R.; 9 E.A.C.A. 65 at page 67:

In any case in which a conviction is likely to proceed on a plea of guilty ... it is most desirable not only that every constituent of the charge should be explained to the accused but that he E should be required to admit or deny every element of it unequivocally.

(See also Hando Akunaay v R., 18 E.A.C.A. 307).

If, however, the words used by an accused person may, per se, appear to be an unequivocal plea of guilty, a conviction may properly be entered against him if the facts given by the prosecutor and agreed to as correct by the accused fully disclose the offence charged. (See Sebastian Mpaka v R., [1975] LRTn, 28).

In the present case, the appellant's words - "It is true" while indicating that the appellant was making an admission, did not constitute an unequivocal plea. The facts given by the public prosecutor cannot reasonably be said to amount to a full disclosure of the ingredients or elements of the offence charged. The facts appear to me to have amounted to an allegation that the appellant had possession of the lion skin.

It is true that by adopting the particulars of the charge, the public prosecutor had, in effect, alleged that the possession was "unlawful". But bearing in mind the fact that the I offence is rather technical, and that the appellant was unrepresented, the words unlawful possession" ought to have been explained to the appellant by a question such

A as, "Do you have a permit or other authority to possess this lion skin?" If that had been done, the appellant would readily have produced the exchequer receipt. Clearly, therefore, the appellant did not understand what he was admitting. It follows, therefore, that the appellant's plea was equivocal, and so the conviction was bad.

Had all things been equal, I would have ordered a retrial. But the facts disclosed amply demonstrate that the appellant's possession of the lion skin was, at the time of his arrest, lawful.

In the result, this appeal succeeds. The appellant's conviction is accordingly hereby quashed and sentence set aside. The appellant shall be released from custody forthwith unless otherwise lawfully detained. The order of forfeiture is also set aside and it is hereby ordered that the lion skin be restored to the appellant forthwith.

Appeal allowed.

88 TLR p178

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