19770711 TZHC Dodoma2

IN THE HIGH COURT OF TANZANIA AT DODJNA AP:?ELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL No;, 36 OF 1977 ORIGINAL CRIMINAL CASE No. 324 OF i 976 OF THE DISTRICT COURT OJ? IRING.A DISTRICT AT IRING A. BEFORE: G GB o MA TUI • . • • • • RESIDENT MAG IS·I'R.ATE D.P.P •• • 0 0 0 • . • • 0 APPELLANT versus B. 8373 D/C LAURENCE • • • . • RESPONDENT CHARGE: Corrupt transactions c/s 3(1) (3) (a) of the Prevention of Corruption Act Noo 16/71 o g-IIPETA, J. ) The respondent:, No" B~ 8373 D/C Laurence, was charged before Irine;a district court of the offence cited in the charge sheet as ;'corrupt transactions c/s 3(1 )(3)(a) of the Prevention of Corr\1.ptioJ?- Act, 1 971 , After a full trial. the learned resident ru.agistrate acquitted the respondei1 t on the ground that the charge was bad for duplicity~ Againslthat acquittal the Director of Public Prosecv± ions now a 1;ipeals on the following grounds:- 1 ~ That th(3 learned trial magistrate erred in Jaw :i.n holding that the charge is duplex. 2~ That alternatively md without prejudice to the aforesaid, th2,,t the defect, if any, was curablef and · 3~ Thut the learnod trial magistrate erred in not exercising his judicial discretion under section 209 of tl1e Crininal Procedure Code. On the basis of those grounds, the Director of Public Prosecutions prays to this court to set aside the order of acquittal of the rE.:sponder.,·c and (a) find the respondent guilty as chargedi- or (b)? in the alternative~ order retrial" The particulars of the charge ~-:;c.ted: 11 B .. 8373"D.C. Laurence is charged on the 5th day of June, 1976 at about 12015 hours at :fl•Iwangata within Iring.:1 district, by hir:iself, corruptly solicited and obtained cash shsc 50/- in Tanzania currency Noo BP 677439 for shs. 20/- BF 670324 for shs. 20/- and CC 280181 for shs. 10/- froB one Bonjanini s/o Mgina as an inducenent for not charging the said Benjanini Mgina with th:3 offonc e of stealing which is in relation to his princip:il? s affairs." • • • •2 2 ... ~ To start with, I will actdress ny mind to ground 3 of the petition. As pointed out above~ tho learned resident nagistrate did not acquit the accused until after he h~d conducted the full trial. Section 209 of the Crinine.,l Procedure Code states:- "209(1) Where, at an_.y stage of a trial,_ it appears to the court that th::; · ch8,rge is defective,. either in substanc G or in for□, the court nay oake such order for.the alteration of the charge oither by way of anendoent of the chr-i.rge or by the,. substitution or addition of a new charge e.s tho court thinks necessgry to neet the circunstanc es of the CF.tSe unless having regard to tho nerits of tho case, the required i.tr.wndncnts cannot be nade without injustice, 2.nd all anendnents nade under the provisions of this subsection shall be nade upon such terns as to the court shall seen fit •. " (The underscoring is 1:rine.) In the instant case, tho learned resident nagistrate, it would seen did not notice the alleged duplicity either before or during the course of the trial. He proceeded with the tricl to the end. It would appear that he only addressed his mind to the question of duplicity of.the at the tine of preparing the judgment. That being so, he could not at the stago have invoked the provisions cf section 209 ( 1 ) of the Crininal Procedure Code. He could on:!.: have invoked those provisions during the trial and not after conpletion of hearing of the evidence for the prosecution and the defence. As was pointed out by Biron, J. in Republif- v. Salehe Ru.hunn (1973) LRT n.83: "As will be not ec1, the saction conn0nces with 'where at any s"i:icgc of a trialc ••• etc., which neans vm2.t it says, that at any stage of~ trial a court n2,y, in ccrt::'.in cirounstances &""Jend the, r charge, but not when a' trie,l hr.s been conpleted ,, as it was in this case,." and as it was in the . instant , ce.se. With respect, therefore, I do not think that it was open to the learned resident nagistrate to·invoke the provisions of section 209 at that stnge of the proceedings~ The second question to which I oust now turn is whotho:::. tho charge as laid is duplex. In order to decide this question it is necessD.ry to exanine the 11rovisions of sectir·- 3 ( 1 ) of the Prevent ion of Corru·_-,tion Act, 1 971 • Section 3(1) of the Act states: • "3( 1) Any person who by hinself, or by or in conjuction with 3.IlY other person, · corruptly solicits, accepts or obtains~ or agrees to acce:;;1t or a.ttenpts to obte,in, fron any i1erson for hinself or for any other person, any advantage o.s an ind:uc er:i.ent to~ or reward for or othsrwise on account of, any agent ( whether or not such agent is tl:e saDe pe·rson cts such first· nen tionJd person) doinc, or forebearing to do, or having done or forborn0 to do, anythinc in r_,lation to his princip~,1 1 s affairs or business, shall be guilty of an offence." Fro □the wording of the subsection, it appears to r.10 t::· .. several offences ar·e crco.ted by the suhsGction • • • • • • • • • •3 ... 3 One o-~·fenc o created by the subsection is corruptly soliciti11&, :-m 0,u.v-f'.nt2-go by m c.gent in rcla tion to his principal' s affairs; tho second is of corru~tly accepting or obtaining or receiving such advantage by such agent; the third· is of agreeing that of agroening to corruptly accept an advantage; and the fourth is that of attcntping tc corruptly c,btain an advantage. Strictly speaking, thGreforo, inasr.ru.ch as the particular:. to the charge alleged that the:; rosr,ondent "corruptly solidi ted. m:rl obtained 11 the ac7.ve..nto.ge, tho charge contained two separat~ offences. It wo..s, ther-.Jfore duplex. It was subnitted by tli.e learned state attorney that although charges preferred under this subsecti0n hQve often contained the words 11 corruptly solicited 2..nd obtained" and. that this is the first tino that they h2ve been qu9stioned on th c ground of duplicity: Th:J.t my be so, but on ny undcrst2,ncling of those provisions, to ccrruptly solicit an advwt2-go" is one offence, Hnd to 11 corruptly acce1)t, r.:,ceiv0 or obtain nn · ad.vantage c1.ndther cffonco." If I an right it this, th,:m, strictly speaking, a charge that allegGs that the .s:.ccus e:d both solicitod nnd obtninud or received an advantage corruptly is duplex. The nore difficult question, however, is whether thG :, duplicity was of such a natur.e that it cannot be cured. In thG case of Cherere s~o Gukuli v. R. (1955)22 E.A.C.A, 4 78, the Court of Appeal f,cr ~ ci.storn .Africa reviewed th·,.; cases on'·',;.,-1e question as to whethor A conviction pursucnt to e. such ,1hich is duplox nust necessarily be quashed .• The Court th~re stated, at p~ge 482: • • • • • the test •.••• which we nust a,_,:1ly 11 to imswcr the question, what has been the affect of the def ;'::ct in the charge on the trial and conviction of the ap1xJllant, r:mst be ,;,•rhother there hn,s in fact bt;Gn et failur8 of justice." The Court, however, added, at pRge 483: "In Odda Tore's cnse ( ) this court sn.i-cf':-,-Unl :ss this court is able to sGy without hesitation that the accusGd h::\S not b~· en 11re judiced by the duplicity there will be no other course open to it than to quash the conviction.' We think it is inpossible •to say, and certainly no court h2s so far as we are aware evor yet said, that an accused person is not ,;>rejudiced when offences· are charged in one count in the al tern2tive; he does not know pr0cisely with whit ho is charged, nor of wlk~t offence he has been convictsd. It is, inde0d, very difficult to say that a broach of an el0nentary principle of crininal procedure had not occasioned failure of justice." , ~m ny own vi0w of that judgnent I do not think that th,2 Court intended to nean th/?,t cluplic i ty is n-::cossarily alwr.,,ys fatal to o. conviction. The .principle- seens to ne to be that a court must consider whether or not the duplicity has occA.sioncd n failure of justice, _and in deciding that q_ucs·:;:.. tho nature of duplicity o...vid other circunstancos of the case nust bo considered. .. 4 '""". I an fortified,. ~:r +: :--i.:: vi,,:;w by th8 decision of the 1 Supreme Court of Ksnya in ths C8.SG of Laban Koti v. R. (1962) E.A. 439. In that the e.)pellGntwa,_s cl12.rgod with and convicted of wrongfully ntter:1P-:ting.··to interfere with or influ8nce witn:-:. sses inc. judici2..l ;iroc·eed.ingt eithc:-r before or after they h2.d givon evidence c/s 121(1)(fJ o_f the Kr~nya Penal Code. On a 11j.,")Oal it was sugGested th 2. t th0 charge night b o bad for du:)lic i ty ,. firstly because it clleged tll?. t tho apj_)ellant "wrongfully attoor,t.Jd to interfere or influence" witn&ss0s, and secondly b8causo it alleged that such attt;:r.qt · occurred ."either before or aftcJr" tho witness had given evidence •. The court quoted th. G ab ovo-quotod passages fron Ch:::rore Gukuli's case ru1c1 said-~ at pngo 440-441: "This l.::.i.st extract certainly sucg,-,sts stroncly that duplicity in a charge is nearly always a fatal def::ct but in our view it does not go so fqr as to state that it is 8lways nocossJrily fatal. It says tbat it is very difficult, not that it is P..lways inp_ossible to say, that a breach of the elonentary princiJ:ilo of crininal procedure h2,s not occasion0d a failure of justice. The t ·,st still rena.ins as to whethGr or not a failure of justice h<'1.S occurrod. In our opinion the rcsul t of the: applic:;1.ti on of this test nus t depend to sone .?xtont upon the circu.nsto.nc os of the: case 0.nd the natv.rcJ of the duplicity." With respect, I agree with that stater1ent as 8. correct stateEen· of the principl_e. to be nrJplied in deciding tho effect of duplicity of a charge. Tho next question I h· vo to consider in the instant case, 0 therefore, :i.s whether fron the 11~,.ture of the du:;)lici ty and other circunst,qnc ,s the duplicity occasioned a failure of justice. The evid&nc e 2.r'.c~uced by the trial court WErn that after the accused h2.d solicited ;:1.n advantage corruptly fron one Benjamini Mc;ina, he :ili.ater accepted the advantage of shs. ·50/-. Tho charge cls:;arly allegud that he corruptly obtained shs. 50/- fron B ... njar.1ini~ Throughout his cross exe.nination of wi tnussE.:s, the respondent was challen:::;ing the _allegation that he received e.ny noney at all, and in f~ct 1 ;insisted that the noney was plants:"l :is lJGrson by his fellow police offic ,2rs who SGarched him ar::.c1 arrest0cl_ hin. In his defence thE:: respondent acain denied. having receiV"''. the r1oney and said that no one had seen hin recei vine; the money. It is also not irrelevant to note that the res,ondent has been a police officer fnr the last six years~ and ho,d been dealing with corruption cases since 1973. Ravine regard.to the nature of thfJ duplicity, tho evidence of the pros ecutihon, the trend of the resporn7-ent' s cross- exar:1ination cf the prrsecution witncssr::S, the gist of his defence, and his experience ~s a police officer, I o.n of the cons ic1ered view that the duplicity of tbc.: chB.x-Ge in this case did not at all occasion a failure of justice·. It is, therefor:_ curable under tho prnvis ions of sect.icn 346 of the Crirn.nal Procedure Code. The le~ rncd resident nagistrnte, therefore, and with respect, err8d in b::~sing the acquittal on the ground of duplicity. The final question I should now consider is as to what should be done in the circunstances. • •.•••• 5 5 .... The learned state attorney 11. .s subr.1i ttbd that as a first 0 appellate court I an entitled to revi"·w the evic'..ence e.ncl corJe to ny own findings of fact. I agree that a first a~!:-iellate court is entitled to revi.sw thfi evidenc,~· and form its·.cwn f.. i.nion thereon,· but always• bearing in Dine. that it h2,s not had the advantage · c-,f tho tri::i.l □agistrate cf seeing and hearing tho witn1-3ssos. In this case, th•a decisi·.)n on ths neritE! depends entirely on thG credibility of witnesses. U:nl:.:--.ppily, the learned resident nn6 istrat6 did not ev~lu~te ~18 0vitence, and he did not co'ne to 2-.ny conclusions as to which wi tn:~-sses he 8.cco1)ted as truthful n.nd which on: s were untruthful. Indee(, he □ade no findings of fact. He confined hims1-::lf to the leg;:<~ issue of the duplicity of the: che.rgG. In those circur1skmc·;s 9 I 2.n h8.ndcupr ed. Al thouz,h in ~,rinciplG I can evalua.te · the evidence and cone tony own findings of fact thereon, I do not think it would. b::, fair to the Republic or to the respondent th~t I should do so in the circunst~nces of this case. The al terns.tive prayer is that I should c,rder retrial anc1 I will now consider whether or not to grant that prayer. Under the ~rovisions of section 319(1)(c) of the Crininal Procedure Code, this court is empowered to alter or reverse any order 8Ilc. to r:t.'l.ke any a.r.iendment or 8.ny consequontie,l or incidental order that nay a:~i~ ear just and :;,;roper. A retrial, however, should not be o::·dered where it is likely to cause an injustice to the accused person. (Man.j~ v. Republic (1966}E.A. ~43, 344). · In the insta:~:t cr:>.so, thu trial court :::_;ver considered the truthfulness or oth,.:rwise of the pr0ssJcution' s wit:-;.8ssss, and it like?.ise never considered th0 reasonableness or otb.:-'r- wise of the respondent's· ovide;1ce. The respondent h2,13_ n::ver been cor:mi tted to yrison, end he was in fact n0ver in r;;.r:r.nd custody throughout thG tr5. 'll. The exhibits ?.re 0asily identifiable, and thGri;; is Eothine; to suc;gest tl-12,t, the prosecution would he likely to "fill in g2.ps'; in th0ir case. Th~:re is nothine.; the reforo, tc sucgest that a retrial would b~ prejud.ic ial to thG ros;_)o~dent. In th-;;S'J circunstR-llC•·;S, an:.1 b 1:aring in □ind th~ rol,-;ti vo seriousness of the offenco. I am of the viow that justice den2-nds th8.t an order of retri?.l bG ordered. In the r·.~·sul t the R)peal is allowed. The loarned r~sident ~agistrato's nrder of acquittal of the resroncent and all the proceodincs before hira arc hereby sot aside. It is ordered that the r~s~ondcnt bo tried de nova befnre another r:w,gis tra te with conpctent jurisdiction. {/J ;, ,/; . /,( t~(("'/1 / r { ,_ t B.D. CHIP:CTA JUDGE Delivered in open Court as Dodoma this ! i ,h. day of July 1977 •.. /,-/'/ i/ l _: :; ,~ /(' / . ;· ·I . /'' . / , . . / ( I \J.'· <.. ~ . , ' / i ·, \ ·: . ,.' / B.D .. CHIPETA 1 JUDGE.