Desai v. R. E. A. C. A. Crim. App. 55-71; 3/6/71; Duffus P. Spry v. P. and Lutta J. A.

 

Desai v. R. E. A. C. A. Crim. App. 55-71; 3/6/71; Duffus P. Spry v. P. and Lutta J. A.

The appellant was convicted by the Resident Magistrate Dar es Salaam, on his own plea of guilty, of corruption c/s 3(2) of the Prevention of Corruption Ordinance. In answer to the charge the appellant is recorded as saying “It is true I corruptly gave 40/- to A. 5059 Sgt. Samson as alleged.” The facts as alleged by the prosecution were then recited and the appellant is recorded as having said “The facts are correct”. The appellant was sentenced to two years imprisonment and twenty-four strokes, the

Magistrate holding that the Minimum Sentences Act (Cap. 526) applied and that there were no special circumstances within the meaning of Section 5(2) (c) of that Act. The appellant appealed unsuccessfully to the High Court. He thereafter appealed to the Court of Appeal for East Africa thereafter appealed that the plea as entered was not unequivocal and that the minimum sentence should not have been imposed.

            Held: [Per Spry v. P] “It was submitted in the High Court that the appellant speaks little English and that he answered to the charge in Kiswahili, a language with which the learned trial Magistrate was not conversant. We are of the opinion that whenever interpretation is required in any court proceedings the fact should be recorded and the name of the interpreter and the languages used should be shown.” (2) “Mr. Lakha drew attention to use of the word “corruptly” which is a term of art and the words “as alleged” which are not commonly used in Colloquial speech. He submitted that in recording the plea, the magistrate must have expressed in his own words what he thought the appellant was intending to say. We think it is equally possible that the plea as recorded represents an affirmative answer to a question “Is it true……?” (3) In Hando s/o Akunaay v. R. (1951) 18 E. A. C. A. 307 this Court said “As has been said before by this Court, before convicting 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 explained to the accused, but that he should be required to admit or deny every such constituent.” Mr. Lakha submitted that in the present case, one major Constituent as well as some of the minor ones, had not expressly been admitted: that was, the purpose of the alleged bribe. We think there is some substance in both submissions, but we think the irregularities were curable and were in fact cured by the statement of facts accepted by the appellant and we are satisfied that no miscarriage of justice resulted.” (4) “On consideration (of Section 8(6) of the Appellate jurisdiction ordinance) we think that while it is not open to us to consider, on second appeal, whether a sentence is unduly severe or unduly lenient, it must be open to us to consider whether  a sentence to be passed, has misdirected  itself in law and, if we uphold such a submission and consider that the sentence passed resulted directly from the misdirection, to interfere with that Sentence, so as to substitute for it a sentence which the trial court would have imposed had it directed itself correctly. For example, if a trial Court, wrongly thinking that some offence was subject to the Minimum Sentences Act, passed a sentence which would have been Correct had that Act applied but which, though not illegal, was manifestly in appropriate when the Act did not apply, we think we have jurisdiction to correct the matter.” (5) “We respectfully agree with those decisions of the High Court in which it has been held that he triviality of the

Amount involved may constitute ‘special circumstances’” (6) “As a general proposition we agree (that previous good character may Constitute ‘special circumstances’) although we think something more must be shown than that the accused is a first offender, a qualifying factor under paragraph (a). Certainly, long and honorable service to the Community might be a relevant factor.” (7) “We think that in every case where an accused is unrepresented and where the Minimum Sentences Act applies and the qualifying requirements of paragraphs (a) and (b) of Section 5(2) are satisfied, the Court should explain subsections (2) (c) and (4) to the accused and ask him if he claims that any special circumstances exist.” (8) Appeal against convictions dismissed but sentence of 2 years imprisonment and 24 strokes set aside and substituted by a sentenced of nine (9) month’s imprisonment.