Masale v. Republic Crim. App. 149 & 150-M-70; 9/5/70; Seaton J.

Masale v. Republic Crim. App. 149 & 150-M-70; 9/5/70; Seaton J.

The appellant, with a third co-accused Gulam Rasell who was acquitted were jointly tried for theft of five bicycle chains and two bicycle brake stirrups. The trial court convicted the second appellant Omari of theft of two bicycle chains and the first appellant Shabani of receiving the two chains knowing hen to have been stolen or unlawfully obtained. It was alleged by the prosecution that the first appellant purchased from the Cosmopolitan Store on 30^th October, 1969, three bicycle chains but that the second appellant delivered to him five chains, the additional two having been stolen. There was no evidence that any bicycle chains were missing from Cosmopolitan Store. The first appellant testifying at his trial claimed to have purchased six bicycle chains and six “kasuku” from the Cosmopolitan Store but claimed that he had lost his receipts. The second appellant testified that he delivered five bicycle chains to the first appellant on the instructions of the shop assistant, the co-accused, Gulam. The third co-accused, Gulam stated that on 30 October, 1969, he only sold three bicycle chains and brake stirrups to the first appellant, where upon the magistrate was led to the conclusion that the additional two chains were stolen by the second appellant and received by the first appellant with guilty knowledge. On appeal to the High Court it was submitted that the statement of an accused person may be used against his co-accused only if there is otherwise a substantial case against the latter. (Uganda v. Enyesa Mberi and another E.A.C.A. Cr. App. 68 of 1969 – unreported – cited).

            Held: (1) “It appears that the statement involved in the case cited was a confession by a co-accused while in the present case, the statement of Gulam, the third co-accused, was exculpatory. In this country, S. 33 of the Evidence Act provides that a confession may be taken into consideration in a trial of accused persons jointly for the same offence only against the person making such confession.” (2) “S. 130 (3) of the Evidence Act provides that every person charged with an offence is entitled to testify “for the defence.” Commenting on a similar provision in English Law (Criminal Evidence Act, 1898), Archbold suggests that each accused is free to give evidence which may exculpate or indulpate a co-prisoner (35^th Edition, paragraph 1306) Free he may be, but I would think that a trial court would be very cautious before basing a conviction solely on the evidence of a co-accused. In the present case, the only evidence contradicting the appellants was that of Gulam, their co-accused. In my view, it would be unsafe to sustain their convictions.” (3) “Appeals allowed, the convictions quashed and the sentence set aside.”