19751205 TZHC Arusha

IN THE RI OH COURT- ' OF 1 i TZJfIA,,. AT i3tTSHU1 JLPELLATE JURISDIOTflN, RIG-H COURT ORIUITAL I Lii ITO. 22JUN1976 3Q1975 'I I ORIGINAL CRIMIHAL. CASE'NO. '21 • OF THE DISTRICT COURT OF TAFcTA DISTRICT AT TANG-A I -. BEFORE: A. C. MREI"iL, Esq.' BIIRIs/oJUL...'...............iATELLANT (Original Accused). versus THE REPUBLIC ................ ... RESPONDENT (Original. Prosecutor) JG!NT a ]IYktALI, AC- .. J . The 'appellant was charged nd conicted.b'efore the District 'Court .of:.Tanga District at 'Tanga with the offence of Indecent Assault c/s 135.' of the Penal' Code and was 'sentenced to 18: months imprisonment. He is now appealing against 'both conviction and sentence. The judgenent of the trial court was most unsatisfactory.. After stating the charge facing the • appellant, the learned trial Resident Magistrate imasdiately l'aunchd into an explanation of' the reasons why he accepted the Prosecution evidence without even giving a suary of the evidence which hç accepted. Having finished his explanation he concluded; In short', the 'cit'cuustances of the whole case clearly ostablish that mao accused was in connection with the touching of the complainant I vagina without hor consent • It was an indic ant aOsa'iit and 1 am satisfied beyond. any thread of doubts that the accused has boon right'lr charged with the present offence. I convict him of the chn.re accordingly." . Now.,

no where'in the judgei'lent are, "the circumstances of. the whole case", which according to th trial magistrate, 'clearly establish" that the appellant had touched the complainant's vagina, to be found.' Undoubtedly the trial magistrate had in mind the evidence on record when he was writing his judge:nent, but he failed to tic in that evidence in his judgembnt" as ho should have done. The resulb is that it is not easy to find sense in'the jud.gemont. There is another weakness in this jud.gomont, in that it does not comply with the provisions of Section 171(1) of the Criminal Procedure Code- whichrecuires that the jud.geiaent should., "contain the' point or points for determination,' the dccision thereon and the reasons 'for the decision". The. * . . . ., . . . . -2--- The first point I have td consider in this appeal is whether the irregularities wera-.fatal to the proceedings or whether they are curable under Section 346 D•the Criminal Procedure Code. The iratt er was cosidered n at great length by the Court of Apol for Eastern Jrica in the-- case-- of J Ell CONFIMTCE v...R-(1960) -E.A...-567.• - . In that -case--a •udge o-f. -tha Zupreyi& .Court of Sychelles, had at the donclusion.öf a manslaughter trial, recorded merely the words, convicted of manelaughter. He then took evidence on the previous convict-ions of the- accused, after. which he passed a sentence -of -nine .nonths

imprisonment. On appeal, the Court of !peal for Eastern ifrica after noting that the various Jurisaioiimns in nastern Airica had similar statutory provisions cone ernin, judgeae nt in criminal cases and after considering previously..deeidcd cases, stated at 571: "In our opinion the sections of the vs.ri,ow. now under consideration are intended to lay-down -what-hall be 'in-corporated into a- judgonent in a crimihal case. , But it -f-chews-- from - many decisions of-- this Court, SO:IO of which are- ref. to - above, that tue .:inerprete,t1on placed on the sections is such that noi-compliancs with at least- SOLIO - of the requiremonts of the sections is to be regarded as moe -irregularity. . s, however, it is axiomatic that moore -must be a -judgement in-a criminal trial, -- i-ti uls-o follows that certain requirements must be regarded as basic,-- and non-compliance with thOm would •. result in there being no judge;mant at all. To ascer...am what those esoontial requirements are we think it rigiit to rot-cr to the meaning of - "judgomont" in the English criminal law which is the basis of the various codes ...... - The Court, then revion:cd the English position and ststcd at p. 572 Having regard t the. use of the word in English - - . -- criminal law and to- thc- - 0-oct-ions of the Code now being considered we a r e of the opinion, that in a case where a court has docidOd that an

accused - ------ p'ersonis gqnilty, the basic -elements of-the jugement are the coieviciion and sent-once". I would r-eaoctfuliy say that these views cbrroc-tly' represent The law: also in thieTh-ountry.' It follows therefore that tire-re was a judgement in r;ho -eresont case which was - howover irregular. Did the irregularies occassion a failurO of justice or prejudice tho appellant as stated in Section 346 of the Criminal Procedure Codo? - -I - 'think the answer has- to bc determined by - the - circumstances of each case. - In the prCscnt case-- there appeas to have seen a conflict of evidence which was - - preic tably-- not considered or 'rovi-owOd - bi the trial magistrate. - - - i- -r- - .• 1 12 .11 (the complainant) stat ed in her ovidenc a that she raised an alarm when invaded by the apoellant and she continued 'One woman Telesia camo to the scone • The accused stood up who-n he saw the woman. I wanted to go to report him to the ton cell leader. The accused stood at the Joor and allowed e'o not to go out. Eventually, I managed to roach the -hone of the ten cell leador...... Now, according to 12.12.1, only one person turned up in response to the alarm end that person was a woman called TiESII. However, according to the rest o± the prosecution avidence, it was 12.7.4, a nale person who responded to ,:.1's a±arn. His name is TnIYJNA TEREK/'. J.s I have mentioned thie

apiaroni contradiction was not considered by the Learned trial liesidont Magistrate, who cxclucLca hmeo±f from the opportunity to do so by the approach he anopted in making his judgamenc. P.J.± and 12.12.4 wOre the principal witnoses for tile prosecution and, in the absence of a considsraton of the cofflict between their 'evidence by the trial Court, I would say that the irregularity in the judgeeent, which precluded the trial :lagi(rcrats from considering the conflict of evidence, was of such a nature as to- occassion a ±'ailue of justice. The 1Droceedifl2t we-re. therefore a nullity and must be quas.hed in their entirety and so it is ordered. The next point I have to consider is whether I should order a new trial-. The answer is clearly no. I think it is correct to 5a2:.' that this court will not orctor a now trial wnere it is obvious iron the evictonco adduced ac th ;rial that the outcome- of a new trial would be an acc1uittal, firstly because the position in which the appellant finds himself after the nullification of the proceedings is not likely to be altered by a n:-w trial, and secondly because justice will not tolerato a fruitless exercise. I will therefore not order a new trial, but instead direct that the appellant released frow. jail imloss hold for other lawful caui-e. -- - (. L• 12(LALI) - i. JUDCd. Judgomont delivered in open court this 5/12/7 at Irusha in, the presence of - Mr • Lenboko, Staeto 1ttornez 1?> / F L. N LLJLi ) - (. FL N/IvITLk. - L,C-, JITJJG-E.