Inatio Asmani and another v. R. Crim. App. 833-D-69; 4/3/70; Georges C. J.

Inatio Asmani and another v. R. Crim. App. 833-D-69; 4/3/70; Georges C. J.

The two appellants were each charged with eight counts in some cases jointly and in some cases individually – for various offences arising out of a discovered shortage of funds in the Mtwara Cooperative Union. The charges included conspiracy to steal, theft, false accounting and forgery. The magistrate convicted the appellants on all counts, save that of a conspiracy to steal, not making a finding on that count on the grounds that it was not necessary since he had already convicted on the theft counts. The appeals from the convictions were rejected by the High Court as without merit. However, in the course of its judgment, the High Court considered the trial magistrate’s failure to make a finding on the charge of conspiracy to steal.

            Held: (1) “In support [the trial magistrate] cited Musinga v. R. (1951) 18 E.A.C.A. 211 where the Court of Appeal said: “Counsel for the appellant have referred us to expressions of opinion by this Court and by Courts in England deprecating the joinder of a charge of conspiracy with charges of specific offences based on the same evidence. It is admitted that there is no illegality in such joinder but we agree that it ought not to be done in a case where it is likely to prejudice the conduct of the defence.” In that particular case the Court thought that the joinder was perfectly proper and was the only way of establishing the guilt of some of the persons involved in these illegal transactions. I do not think that this authority justifies the trial magistrate’s decision not to make a finding of guilt or innocence on that count, though I agree with his advice that  where specific offences can be proved the trial should not be complicated by adding a conspiracy count. The effect of such a count may be to may be to make relevant in the case of particular accused evidence which would not otherwise be relevant and could be highly prejudicial though having very little probative value. This was not the case here. Since the Republic has not appealed against this particular finding I do not think that I have the power to convict the appellant on that count though the trial magistrate would undoubtedly have done so had he come to a decision.” (2) dismissed.