19781123 TZHC Dodoma

• .. IN THE HIGH' COUR OP TANZANIA AT DO]OMA APPEELAT8 JURISDICTION CRIMINAL 11PPE1l1 NO. & j OF 1978 ORIGINAL CRIMINI:L CASE No. 33 OP 1978 OF.THE DISTRI(JT COURT OF SINGIDA AT SINGIDA RAJABU EAMADHiNI . . , . . APPEMIMTT versus THE REPIflL1C •, . , .. . . RESPONDENT J U DG M E N T CHIPETA J0. The appellant Rejabu Rarnedhani 7 was convicted on a p2VOrt1 plea of 'gulltr' to.al charge of cattle VI@ft c/ss 268 and 26.5 of the Penal Code, and was sentenced to' five '(5) years imprisonment under the Minimum Sentences Act, 1972 'He now appeals iat transpired is clearly brought out by the proceedings in the trial court, the relevant peirt of which I quote: "Charge read over and explained to Accused who is asked to'ple-ad. ' ".1 admit I stole the head of cattle.' "Entered as a T2iea of guilty. ' Sgd. '???-District Magistrate. 1/2/78 FACTS: •. The accused is a resident of Utaho villäe in Singida On 30/1/78 at night the ccused went to the cattle boma of Mohamed Ntunduu and opened the kraäl0 '' MOhamad.:'was awakened by'some noises atd found out that the gate to' the kraal".was open'.. He noticed that' four ha'd •pfcatt.le. were missing. He raised. an alarm and in reponO. many vill,agers came 'aind helped to 'look for the.; cattle. They managed to get three who (sic) had escaped the driver leaving one cow0 They further followed the footmarks of. the missing cow till the morning, when they met the accused with a slaughtered cow. He was then skinningit. They caught him and reported to the police and P.C. Shabani visited the scene.The aôscd'had confessed to the villagers to have' stolen the cow,He was taken to police station with the slaughtered cow which: is now being skinned and examined by veterinary authdri-ties. The.aocused was then charged. • Accused.: The facts are correct. Court Jecused is convicted-on own plea of guilty. .Sgd . ?? '- District Magistrate V 1/27e "Record: Firsfoffendèr Accused gation: I was invited by some people, who'tb me that the 'cog was theirs" Theeafte,r the ôout senten ed . t} ape1lant t o give (5) years inprisonment As so..pn as the sentence was passed, the public prosecutor informed tb trial court that efforts were being made to track dom more cuLprits. In his memoiandum of, aeal, the appellant complains that he did not, in fact,plead gulty to the charge. It is cortainly'true that the facts as narrated by the public rosecutor and admitted by the arpellant... without qtalification did,., Drima fade, and all things .beiri. equ.al constitute the ofience charged and jutified entering a conviction against the appellant at that 'stage. But what the appellant ,aid ft tn'itigation dearly' changed the situation. His statement in mitigation was a clear indication that he had not committed the offence but merely, and innocently" lent assistance to the real culri.ts who had claimed the cow to be their property. . In those circumstanes, what sshould: thQi.Qarned trial district magitra-be have done? In my view, the proper course for th:e learned magistrate to have taken at that stage would have been to take the statement of the appellant in.. mitigation as a recantation of his earlier admission,'Th then record a ple.a of• "not guilty" to the chargé. There- after the case would have proceeded t'o'aful trial in the usual way. • I am reinforced in thie view by a recent decision of the Court of Appeal for East Africa in the case of udi v. R. (1973) E.A. 540 The facts there were that the appellant and others were convicted of robbery with violence' on purported pleasof guilty. 'iter convicting,the magistrate adjourned tollow the prosecution to produce the criminal records :bf the accusea persons. On 'resumpt ion of the' ,ial, the ap'pèllant was represented by an advocate, who submitted that the pieas of guilty were ambiguouc. The magistrate held that the pleas were unequiocal and that the court had no power to quash its own conviction and refused to allQw the appellant t.o change his plea.. . After c6ns1eringseveral; English and East African decisions, among them the own decisions in the cases of inih (1966) E.A. 167, and E.A.C.A 171), the Court held that a trial court cannot accept a change - 4 - The principles upon which a retial should be ordered were clearly restated by the Court of Appeal for East L.frica in the case of I ublic (1966)E.A.343 in which the CoUrt stated, at pa-ge 344: .... ... ..: •. TTThe question for dec.sion in. this appeal is whether the order for retrial wad justified or not. Section 319(1)(a)(i) of'th Criminal Procedt.re Code of Tananyika, imder which the order for, •retrinl must have:bëen made, appears to gie the High Pourt on appeal an unlimited discretion as to ordering a retrial ....." The Court went on: "...in general a retrial will be ordered only when the original trial was illegal 'or defective; it will not, be ordered where the conviotion is set aside because of insufiTiciency of, the evidence or ffrthepurposse of enabling the prosecution to fill up gaps 'in its evidence at the first trial; even where a conviction is vitiated by a :mi'stake of the trial court'for which the prosecution is'not to blame, it does not necessarily follow that a ret±ial sh6uld be ordered; each case must depend on itt own particUlar facts and circumstances and an order for retrial should only he aade where the interests of justice require it and should not be ordered wbero it is likely to cause an injustice to the accused'person." This court- has on :seve'r'l occasions held that the length of the period of the apeJ.lant.'s seritenceo far served should be taken into account. In the cse of ncis JoPastoiyv, Reublic(1973) L.R.P.n.25, this court held that where an accused person has been in prisoi 'for nearly a year, it is not a:propriate to order a retiial. In tha.t case., the trial was declared null after; the appellant had served nearly a year of a two—yoar custodial sentence and twenty—four strokes of corporal punishment. The, rationale of this prinàiple is not ftr to seek. Where a substantial part of the sentence has already been served by an appellant by the time a retrial is ordered, a conviction on a retrial may well result in the appellant servIng a total sentence that is much too excessive to meet the justice of the Case. - -, However, I do not understand case, .tnd other decided cases on this point, to be laying down a mathmatica1 nile of thumb. What those cases really decided,. in my humble view, is that h retrial ought not be be ordered where the a pellant has already sei- ved a sUbstantial part of the sentence iposed on him at the first trial because in such an event a retrial would be likely to cause an injustice to the accused person. of plea once it.hae entered a conviction and passed sentence because such court then becomes functus officio; but that a court is not functus officio until it, has mde an order finally disposing of the m:atter. In other *ord.s, a trial court may allow an accused to Ohange his plea Of "guilty" to. that of "not giilty" at any time befoie senteiice is passd.. Overruling its own decision in Maumbal.s•case, the Court stated, at.page 545: "The whole purpose and intention of the Criminal : Th00ddure Code is to lay down provisiOns and procedure to see that justice is done, and justice cannot be effected if a plea of guilty is entered as a, iesult of ignorance or misunderstanding. The court must have a judicial discretion to .11ow a. change of plea before it has finally disposed of the case. It is common practice to allow the accused person during the course of.. trial to change his plea of not guilty to one of guilty and we can scO no reasoli why. the court should not have similar powers to cJaange a plea of guilty to one of not guilty. The Court, went on: "A further.question arises, then does a magistrate's court become functus officio and we agree with the reasoning in the Nanch ecorder case that this can,onIZewhenthecourt disoses of a oase by averdict of not uiltv or by pas sins enc e or mag:ing, some orcters (The underscoring .L WJL.L' J • . . -, . In the instant case since the trial court had not yet passed seiitence, it \as not functus officio at the time the appellant made his recantation of, his plea of guilty. Was this, then, one of those cases justifying the judicial exerise of the court's discretion to allow an accused to change his plea? In the circumstances of this case, and bearing in mind the projected defence of. the appellant as indicated in his statemeit, and the remarks by the public prosecutor that other susects are still at large, thus suggesting that the offence was committed by more than one culprit ? I am inclined to the view that this was a fit and, proper case for the trial court to exercise its power to allow the appellant to change his plea of "guilty" to One Of "not guilty". The question that now presents itself is:,what should be done? The learned state'attomiey .suggested.thatan order of retrial wotiid nieet the justice of the case. . •44 - 5 - What will amount to a substantial part ofa.:eonteneo will largely deOfld 9"the substantive sentence itself which imposed at the first trial, the seriousness of the offence and the maximum sentence the offence attracts and, in the case of offences falling within the ambit of the Minimum Sentences ict, 1972, the minimum sentence that would have to be imposed on conviction after retrial weighed against that part of the sentence which the accused has already served. To take an extreme example, if a man sentenced to nine months imprisonment at a trial that has been declared null on appeal has already servcd six months of that sentence, it would not be appropriate to order a retrial. In the instant case, the appellant was sentenced to five years imprisonment That is the statutory minimum. He has now served only about ten months of that sentence. 'ior to his incarceration, he had been in police custody for hard]r a day. In tI' circumstances, therefore, it cannot be said that the a'Tpellant has already served a substantial part of the sentence. Now, considering the seriousness of the offence and the minimum sentence that can be imposed;bcrinr in mind the nature of the error that has led to the vitiation of the first trial; and further considering the cfrcumstancos surrounding the case I am of the view that it is as much in the interests of justice that the a.pellant he afforded a chance to clear himself as it is in the interests of jutice that the Republic be given an opportunity to try to bring the culprit;.. r) to QOk at a full trial. In all the circumstancos,therofore, I am of the considered view that the interests of justice demand that there be a retrial. For the foregoing reasons, the proceed inc's before the 'trial court are hereby set aside, and it is ordered that the case be re—tried, preferably before another magistrate of competent jurisdiction. 1 B.D, Chipetã. Judge. DODOMA 23rd November, 1978. J4Dpellant Absent and unrepresented. V.K.D. Lyimo, State Attorney for Republic.