Saidi s/o Abdallah v. R., Crim. App. 688-D-69, 17/12/69, Georges C. J.

Saidi s/o Abdallah v. R., Crim. App. 688-D-69, 17/12/69, Georges C. J.

The appellant in this matter was charged jointly with Ramadhani Mohamedi (who was the first accused at the trial) with shopbreaking and stealing c/s 296 (1) of the Penal Code. Ramadhani Mohamed was acquitted but the appellant was convicted and the minimum sentence imposed. There were many unsatisfactory features in the conduct of the trial and the judgment did not, in my opinion, deal with all the issues raised by the evidence.

            Held: (1) “The particulars of the charge alleged that the two accused persons had, on 16^th June, 1969, broken into the shop of Ramadhani s/o Athumani and had stolen “goods valued Shs. 2,500/- property of the said Ramadhani s/o Athumani.” This is, in my view, not sufficiently specific. The goods allegedly stolen should be itemised. The Criminal Procedure Code section 138(c) (i) provides: _ “The description of property in charge or information shall be in ordinary language and such as to indicate with reasonable clearness the property referred to.” The phrase “goods valued Shs. 2,500/- “is certainly not enough to indicate with reasonable clearness the property referred to. In the circumstances of this case I do not think that this failure may have led to a miscarriage of justice. The prosecution did not, in proving the case, rely on the doctrine of possession of property alleged to have been recently stolen. Where this is the method of proof, however, it is clear that it would be very important to describe in detail the property allegedly stolen so that the accused person

would know the case he was to meet. At the very beginning of enquiries police should insist that complainants give a detailed account of articles missing with as accurate a description as possible of each article.” (2) “Certain evidence was led after the close of the case for the defence; I think the trial magistrate acted properly in admitting it. He should however, have made a note of the application to have the evidence admitted and the grounds on which the application was based. Thereafter, he should have asked the accused persons whether they had any objections. If they had any he should have considered the matter and made a ruling. The record merely shows that additional witnesses were called after the closs of the prosecution’s case. He did refer to the matter in his judgment but again did not discuss his reasons for admitting this evidence at so late a stage. A more significant error is that the magistrate did not offer the accused persons as opportunity to give further evidence or to call witnesses if they wished to do so with regard to the additional evidence which the prosecution had led. The nature of the evidence was such, however, that I am satisfied that the appellant would not have wanted to lead any evidence or to call any witnesses in rebuttal. I would hold that the mistake, though serious, could not have caused a failure of justice in the circumstances of this case”.  (3) “After the additional evidence had been taken there is no note on the record that the Court would visit the scene on the morning of 18^th August, 1969. Thereafter the record ends. There is no note of what happened at the visit but there is a reference in the judgment to it ….. This appears to refer to a plan but the record does not show that any plan was every put on evidence …. This procedure is improper and is not recommended. The Magistrate is never to make himself a witness in a case. The accused persons have had no opportunity of challenging his plan if they wish to do and of questioning him about it. When there is a visit to a scene a note should be made of this as of any other sitting of the Court. It must be noted that the accused persons are present. No oral evidence as such should be taken on the scene – people should merely be asked to point to various placed referred to in their evidence. Normally a police officer should accompany the Court so that he is available to take measurements and make any observations that may be necessary. After the visit the Court demonstrations at the scene can then be recalled and questioned as to what happened on the scene. A witness who during the visit had stood at a spot to demonstrate what could be seen from there can then describe what he did that day. If the accused persons wished to deny that the witness could see as far as he had said he did they could cross-examine having regard to their own observations on the scene. If a plan seems necessary the magistrate should ask the police officer to have one prepared. The police officer could tender this and be cross-examined by the accused in the normal manner. These procedures are not mere unnecessary and tedious matters of form. They are important if an accused person is to have an opportunity of challenging all the evidence against him and of having all the evidence for the prosecution given an oath except in the cases where the law provides for the reception of unsworn testimony. The method followed in this case was a serious breach of procedure.” (4) “One final procedural error remains to be mentioned. The appellant elected to make an unsworn statement but he magistrate nonetheless questioned him. This is not permissible.” [Citing: Cosmo Alias Mvwane s/o Kafwebe [1950] 17 E.A.C.A. 123 and R. v. Birmin s/o Kujanga [1935]2 E.A.C.A.] (5) The magistrate based his judgment on certain on certain circumstantial evidence, holding

that it “implicated” the accused. “There is a clear misdirection in this statement of the law. Circumstantial evidence must not merely implicate an accused person. It must be such as not to be explicable on any other reasonable hypothesis but the guilt of the accused. The matter was put thus by the Court of Appeal for East Africa in Sharmmal Singh v. R. [1960] E.A. 762 at p. 776. “It is the bounden duty of a judge in dealing with circumstantial evidence, to consider every possible set of circumstances, in the process of determining, as he must, whether the evidence is incapable of explanation upon any other reasonable hypothesis than that of the guilt of the prisoner. He must examine every other reasonable possibility and test it against the evidence – only if it is incompatible with the evidence may be discard it.” (6) Despite these irregularities, appeal dismissed because evidence sufficient to convict.