Lugimbana v. R. Crim. App. 356-M-71; 29/10/71; Kisanga Ag. J.

 Lugimbana v. R. Crim. App. 356-M-71; 29/10/71; Kisanga Ag. J.

The appellant was convicted of causing grievous harm. P. W. 4 allegedly made a statement to the police which was inconsistent with his testimony during the trial. During the trial, the prosecution asked leave to treat P. W. 4 as hostile according to section 164(1) (c) of the Evidence Act and this was granted, but after the defense had finished cross-examining P. W. 4. P. W. 4’s earlier statement was not produced in court but the magistrate acted on it in convicting the appellant. Apart from this statement, the evidence against the appellant was so thin and unsatisfactory that no conviction could be based on it.

            Held: (1) “In the case of Kiboga Mahenga vs. R. 1968 H. C. D. n. 200, a similar situation arose and Mustafa, J., as he then was, held that the alleged previous statement should have been produced. The reason for this rule seems apparent. It would enable the court to discredit or not to discredit the witness by comparing the witness’s testimony in court with his previous statement which is before it. When the previous statement is not produced then such comparison becomes impracticable. The court cannot even use extracts taken from the previous statement and recorded in the proceedings during cross-examination of such witness unless the previous statement itself is put in to form part of the evidence. Failure to put the previous statement in evidence therefore was an irregularity. Again, the application for leave to treat the witness as hostile was made after the defence had finished cross-examination him and at a time when he was only available for re-examination by the prosecution. That would seem to be wrong, and I think that an application to treat a witness as hostile ought to be made during the examination-in-chief when the party is adducing evidence from the witness in an attempt to establish the main issue or issues in its case.” (2) “It also appears that the trial magistrate was not entitled to accepted act on the evidence of P. W. 4 as he did. In the case of Mabati bin Ruadiba vs. R. 1938, E. A. C. A. 52, the Court of Appeal held that where a party seeks to impeach the credit of a witness by proof of a previous inconsistent statement and the party succeeds to show that there are serious and substantial inconsistencies which are unexplained,

the effect of such exercise is to render the witness unworthy of belief and not to make what he said in his former statement available as evidence at the trial. In other words, this means that the previous statement must be discounted. Thus in my opinion where a witness has been successfully discredited the net effect of such a course is that both his testimony at the trial and his previous statement should be discounted and neither may be made use of a evidence. In the instant case P. W. 4 admitted that all what he had said at the police station were lies. He gave no reason why he told lies to the police. Therefore there was clear indication that the witness was capable of telling lies and hence capable of being disbelieved. If his statement to the police was available it might well show that the witness did in fact tell lies to the police and that the lies he told were serious and substantial. In these circumstances, the rule in Ruadiba’s case cited above would apply and the witness should be made unworthy of belief so that his testimony in court should be disbelieved. Since the trial magistrate did not satisfy himself whether the witness had in fact told lies or not and if so to what extent, I think that he was not intitled to accept the witness’s statement in court against the appellant because the witness could well be unworthy of credit.” (3) Appeal allowed.