Francis s/o Mtunguja v. R., Crim. App. 858-D-69; 18/2/70; Georges

Francis s/o Mtunguja v. R., Crim. App. 858-D-69; 18/2/70; Georges

The appellant was convicted of stealing by a person employed in the public service c/ss 265 and 270 of the Penal Code. The evidence was that the appellant was an Assistant Accountant employed with the National Provident Fund. If an employee was not able to draw his salary at the appointed time the appellant was supposed to deposit it to the account of the National Provident Fund at the Bank of Tanzania. This deposit would be made on normal bank deposit slip. A copy would be sent on the Headquarters of the Fund. Apart from the copy of the deposit slip the appellant was also required to send to headquarter a list detailing the individual salaries which had not been paid and which together totaled the amount of the particular deposit. The prosecution at the trial based its case on proof that for the months of August, September and October, headquarters had not received any copies of deposit slips showing that unpaid salaries for those mouths had been deposited, nor had they received any itemised lists showing which particular salaries had not been paid and had accordingly been returned. On scrutiny it appeared that Shs. 6,422/90 had not been paid out to various employees and that this sum had apparently not been accounted for. The appellant did not give evidence on oath but made an unsworn statement which consisted largely of arguments. On the basis of this evidence, the trial magistrate inferred that the appellant must have stolen the money and convicted. In his petition of appeal the appellant urged very strongly that mere non-receipt at headquarters of the Bank Deposit Slip did not mean non-payment into the bank.

            Held: (1) “At the first hearing of the appeal adjourned the matter so that further evidence could be adduced as to whether of not the money had in fact been deposited. In so doing I acted under section 322 of the Criminal Procedure Code which stated in part: - “In dealing with an appeal from a subordinate court the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.” I thought such additional evidence necessary because although it is possible, in my view, on the facts to support the inference drawn by the trial magistrate, it appeared to me to be undesirable to decide an important issue as to guilt or innocence on a serious charge on an inference when there could e available records which could help to establish the matter one way or the other. If the money had in fact been deposited then the appellant would be acquitted and absolutely cleared. If the money had not been deposited then his quilt would be established with certainty. To deprive once self of the benefit of this evidence when there was power to hear it did not appear to me to be in the interests of justice. The authorities in East Africa have tended to narrow somewhat the wide power conference on the courts by section 322. The law would appear to be that additional evidence could not be called for the purpose of “filling”

gap” in the case for the prosecution. More explicitly the Court of Appeal has held that where on a scrutiny of the evidence it is clear at the close of the case for the prosecution no case had been made out against the accused person because there was a gap in the evidence, then on appeal the power to call additional evidence should not be used so as to fill that gap. On the other hand, where all that was required was elucidation of some matter left vague in the case for the prosecution then the power conferred by s. 322 can be used. I am satisfied that this case falls under the category of elucidation. The fact that the evidence was available and could have been called in the court below would seem to be immaterial.” (Citing: Mohamed Hussein v. The Price Controller), (1943) 10 E.A.C.A. 72). (2) “For my part I would think it desirable that the powers conferred by section 322 should be given the widest possible interpretation. A first appeal from the subordinate court is in law an appeal by way of re-hearing. In Tanzania it may well be that up to that stage no fully qualified professional lawyer has in ay way been connected with the conduct of the proceedings. Thought lack of experience or negligence important lines of enquiry might not have been followed either by the police or by the defendant in the course of the trial. If the emphasis is to be on the interest of just, i.e. ensuring the acquittal of the innocent and the conviction of he guilty, there should be little reluctance at the hearing of the first appeal, to have as thorough an investigation of the factual situation as may be possible before arriving at its decision should this appear necessary. It could be safely left to the discretion of the Appellate Tribunal to make sure, without the application of any hard and fast rules, that this power was not used aggressively against accused persons. It might be that the decisions of the Court of Appeal would preclude my taking such view of the section but as I have indicated, even under the narrower interpretation this was a case in which additional evidence could properly be received.” (3) Additional evidence called, which fully supported the prosecution case. Appeal dismissed.