[1947] EACA 56

## COURT OF APPEAL FOR EASTERN AFRICA

Before Nihill, C. J. (Kenya), Sir G. Graham Paul, C. J. (Tanganyika), and THACKER, J. (Kenya)

REX. Respondent (Original Prosecutor)

$\nu$ .

## (1) DINU d/o SOMBI, (2) MUHERI d/o LESO, (3) SITA d/o YAHI, Appellants (Original Accused)

## Criminal Appeals Nos. 232, 233 and 234 of 1947

(Appeals from decision of H. M. High Court of Tanganyika)

Criminal procedure—Irregularities—Ss. 279–283 Criminal Procedure Code (Tanganyika)—S. 346 id.—Nullity—New trial.

In the trial of the three appellants jointly for murder the provisions of ss. 279-283 of the Criminal Procedure Code (Tanganyika) were not complied with.

The appellants were convicted and appealed.

Held (11-11-47).—That since, had the trial Judge followed the procedure laid down in the Code both his finding and the opinions of the assessors might have been different, the error could not have been cured by the application of section 346 Tanganyika Criminal Procedure Code.

Appeal allowed.

Trial declared a nullity and re-trial ordered.

Appellants absent, unrepresented.

Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by NIHILL, C. J.).—This is a consolidated appeal from the convictions for murder in the High Court of Tanganyika of the three appellants who were jointly tried on the same information. As we have come to the conclusion that owing to errors in procedure the trial must be declared a nullity it is not necessary for us to examine the specific grounds of appeal raised by the appellants in their memoranda.

According to the typed record, the accuracy of which we have checked with the original, learned counsel for the appellants addressed the Court after the learned trial Judge had summed up to the assessors. The Judge then put six specific questions to the assessors and obtained their answers. Counsel for the defence then appears to have addressed the Court again and to have made submissions both on law and fact. The learned Judge without any further charge to the assessors then recorded his agreement with the opinions already taken from the assessors and found all three appellants guilty. Following their conviction he put two further questions to the assessors for what purpose it is difficult to see. In the result there has been such a non-compliance with the provisions of sections 279 to 283 as to vitiate the proceedings. It is essential that before a trial Judge sums up the evidence for the prosecution and the defence to the assessors that the addresses of counsel, if any, should be concluded so that the Judge may have in his mind all the submission made on the evidence, both in order to direct himself and the assessors where he thinks necessary. That we should have to state such an elementary axiom somewhat surprises us. In the present case, had the trial Judge followed the procedure laid down in the Code both his finding and the opinions given by the assessors might have been different. The error therefore clearly cannot be cured by the application of section 346 of the Tanganyika Criminal Procedure Code—as in another case recently before us from the same Judge we think this a proper case for this Court to order a new trial. We accordingly, therefore, order that the conviction of the three appellants be quashed and the death sentences set aside and direct that the appellants remain in custody to be retried in the High Court before a different Judge.

## COURT OF APPEAL FOR EASTERN AFRICA

Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and THACKER, J. (Kenya)

### REX, Respondent (Original Prosecutor)

# BILLA s/o LUHOYO, Appellant (Original Accused) Criminal Appeal No. 254 of 1947

## (Appeal from decision of H. M. High Court of Tanganyika)

Murder—Cause of death—Opinion of unqualified hospital assistant.

Observation on the acceptance of opinion evidence from unqualified hospital assistants as to the cause of death in cases of homicide.

Appellant absent, unrepresented.

#### Southworth, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by NIHILL, C. J.).—In this case the learned trial Judge and the assessors accepted the evidence of two witnesses for the prosecution from which the only possible inference is that the appellant strangled the deceased before or during the course of a sexual assault upon her. There was other evidence which, had it been believed, would have established his innocence, but it is not for this Court to say that the Judge and assessors who heard the witnesses and had an opportunity of studying their demeanour were wrong. The guilt of the accused on the accepted evidence is fully established.

We note that in this case, as in some other cases which have come before. this Court from Tanganyika, opinion evidence as to the cause of death was taken from a person who was not a qualified medical officer. We appreciate the conditions and circumstances which bring it about that it is often the case that no better evidence can be obtained than that of a hospital assistant with some medical knowledge, but we think it right to utter the warning that where in a case there is other evidence not tending to corroborate the cause of death testified to by such a witness, this Court would not accept an opinion given by an unqualified hospital assistant, as that of a medical expert witness as establishing cause of death.

In the present case no such difficulty arises as there is other evidence which leaves no doubt in our minds that the death of the deceased was due to strangulation.

The appeal is dismissed