Gerald Karoli and another v. R., Crim. App. 500-M-71, 24/3/72, Kisanga, Ag. J.

 

Gerald Karoli and another v. R., Crim. App. 500-M-71, 24/3/72, Kisanga, Ag. J.

The appellants who were charged jointly with others who were acquitted were convicted of breaking into a building and stealing there from c/s 296(1), Penal code and breaking into a building with intent to steel there from c/s 297, Penal Code. They allegedly broke into the office of a petrol station where they were employed, and took away some keys. With these, they opened the store of the petrol station, removed 53 tins of kerosene, and sold them to the 3^rd accused, but did not account for the proceeds of the sale to the management. They I were convicted on the sole evidence of PW7 who said he was visiting the station at the time and witnessed the transaction. Two other employees who were at the station at the time were not called as prosecution witnesses and appear to have numbered originally among the accused. The 3^rd accused was acquitted because he produced a receipt for the sale and there was doubt as to whether he knew of its irregularity. He failed to identify the appellants as hose who had sold the kerosene, saying it was other workers at the petrol station.

            Held: (1) “To my mind the learned trial magistrate very properly found that the explanation of the third accused raised some doubt as to his guilt and therefore acquitted him accordingly. It seems further to me that that same explanation considered together with other evidence in the case as a whole was sufficient to cast a reasonable doubt as to the guilt of the

appellants.  The third accused said that the kerosene was sold to him not by the appellants but by other persons at the petrol station …….. PW 7 said that in addition to the appellants there were two other employees at the petrol station. Thus his evidence is consistent with that of the third accused when he said that he found on duty at the petrol station some two people other than the appellants; and therefore the possibility is created that the kerosene may will have been sold by the said two people who were on duty working at the station at the time and not by the appellants who were then off duty during the lunch break ….. What is really puzzling is why were these two people not called as witnesses? ….. Had they been called it is not possible to say now whether they would support the story as given by PW 7 or by defence”. (2) “At this stage Mr. Rahim who appeared for the Republic at the hearing of these appeals raised an interesting point. He submitted with great persuasion that it would be competent for this court acting under section 322(1) of the Criminal Procedure Code to hear additional evidence from the said two employees even though this would amount the filling a gap in the prosecution case and in support of that submission he cited the case of Francis Mtunguja v. R.  (1970) H.C.D. 181.  In that case the question before the court was whether the prisoner had deposited with the bank the unpaid salaries of his fellow employees. George c. J. stated the present law as laid down by the Court of Appeal in the cases of R. v.  Sirasi Bachumeira (1936) 3 E.A.C.A.40 and R. v. Yakobo Mayego (1945) 12 E.A.C.A which is to the effect that additional evidence may be ordered if it was required merely to elucidate some evidence or matter which is already on the record, but not for the purpose of filling a gap in the prosecution case. Commenting on this law the learned chief Justice observed that this interpretation tended to narrow the powers conferred by section 332 of the Criminal Procedure Code. He considered that it was desirable that the powers conferred by that section should be given the widest possible interpretation. Having made that observation, however, he held that the case under review fell within the narrow interpretation as laid down by the court of Appeal, and hence he called for additional evidence which fully supported the persecution case and consequently he dismissed the appeal. On the face of it the position as remarked by the learned Chief Justice is not free from difficulty. Admittedly it is desirable that section 322 should be construed widely so as to enable the appellate court to apply it in order to ensure the acquittal of the innocent and the conviction of the guilty. But to my mind the practical difficulty that arises is where does one stop? In other words although a first appeal from the subordinate court is in law an appeal by way of re-hearing then should the  first appellate court admit every kind of evidence which was omitted by the prosecution during  the first hearing? While I think that the power conferred by section 322 ought to be exercised with care, I also think that the court of Appeal in the case of Mohamed Hussein v. Price Controller (1943) 10E.A.C.A. 72 does provide some guide as to how the court should approach the whole matter. On page 74 of the report the judgment reads: “Every case of this kind has to be considered on its own particular facts and circumstances

and the courts should refrain from laying down a hard and fast rule which might result in miscarriage of justice in individual cases”. It is pertinent to not that the court of appeal was distinguishing the case from its own earlier decision in the case of R. v. Sirasi Bachumira cited above in which it was held without any qualification that additional evidence should not be called for fill a gap in the prosecution case. Thus it would seem that the interpretation in Mohamed Hussein’s case of the powers conferred by section 322 allows the court considerable latitude and flexibility. The court is required to consider the fact and circumstances of each individual case and to my mind, the primary question would be to determine what facts and circumstances exist in the particular case which would warrant taking additional evidence. Against that background therefore perhaps one may attempt to reconcile the interpretation of the powers under section 322 by the court of Appeal and the observation made by Georges C. J., and to say that the learned chief Justice was not expressing any views which were basically different from those of the Court of Appeal but that what he was really saying was that in considering the facts and circumstances of each particular case the court should place a broad construction on what would amount to facts and circumstances which would justify taking additional evidence in the matter.” (3) “Having said that I now turn to consider whether, as urged by Mr. Rahim, this is a fit case in which to take additional evidence of the said two employees. It is quite clear that these two employees are suspects in this case. The third accused said that they were originally charged. This appears to be supported by the evidence of the second appellant who said that originally two other persons were jointly charged in the same information but the charge was withdrawn against those two persons. It is therefore clear that the two employees are suspects who have been charged with these offences, and as such they would have every reason to tell lies in order to shift the blame on the appellants and to safeguard their own position as employees of the petrol station. Thus even on the widest construction possible I think that there are no facts or circumstances which would justify taking additional evidence in the matter. On the contrary I think that such a course might result in a failure of justice in that it may lead to the conviction of the innocent. I therefore think that the court should not direct the taking additional evidence where such additional evidence might lead to the conviction of the innocent, and accordingly I decline to make an order for taking additional evidence in this case.” (4) “Considering all the circumstances of the case the prosecution evidence was far too thin to support the convictions. The appeal is therefore allowed……” (5) “There is one other matter which requires mention here. This is in respect of the procedure followed in connection with the third accused who was acquitted. At the close of the prosecution case the learned trial magistrate addressed the accused in terms of section 206 of the Criminal Procedure Code and in answer to the court he advocate for the accused said that the accused had no witnesses to call, and this was recorded on behalf of the accused. Later on during cross-examination the prosecution asked the accused

If he did not tell the court that he had no witnesses to call. Whereupon the advocate for the accused said that what he said to the court on behalf of the accused should not have been recorded as being the reply of the accused, and therefore he contended that the accused had not answered the question at all. The learned trial magistrate however, held that the answer by the advocate on beheld of his client could be and was properly taken as the answer of the prisoner himself. I find it rather difficult to agree with this view. Section 206 of the Criminal Procedure Code provides: - [the court then proceeded to quote the section in full]. All the references to the accused in that section are to the accused person personally and not to his counsel. For my part therefore I find nothing in that section which would be construed to mean that any reply given under the section may properly be given by an advocate on behalf of his client. Of course the advocate has a duty to give the best guidance and advice to his client at every stage of the proceedings, and indeed it would be competent for him to advise whether or not to call witnesses. But it seems that he actual reply under section 206 must come from the prisoner himself and where, as in this case, counsel intimate to the court that the accused does not wish to call witnesses then the court must ask the accused to confirm it. For, it is possible for a prisoner to disagree with his counsel on whether or not to call witnesses for the defence, and where this happens I would be inclined to think that the prisoners own choice should prevail. In the present case therefore it is not known whether the prisoner wanted to exercise his right to call witnesses and to the extent that that position was not ascertained I think that there was an irregularity. It is now not necessary to consider whether that irregularity was fatal because the accused was acquitted anyway, but I think that in a proper case such an irregularity may well be considered a sufficient ground which would warrant an appellate court to interfere.”