Kato v. R. Crim. App. 33-D-71; 3/6/71; Duffus P., Spry V. P. and Lutta J. A.

Kato v. R. Crim. App. 33-D-71; 3/6/71; Duffus P., Spry V. P. and Lutta J. A.

The appellant was charged with the offence of forgery c/ss 333 and 337 of the Penal Code; uttering a false document c/s 342 of the Penal Code; and attempted theft by a public servant c/ss 265, 270 and 381 of the Penal

Code. the facts as established were to the effect that the appellant prepared and signed the original of payment voucher alleging that 13 police constables had gone on safari ad claimed Shs. 1,530/= as night allowance. This was not true; the constables had neither gone on safari nor claimed the money. The copiers of the voucher were stamped with the name “G. H. Mwamlima” and he original were signed by the appellant with his own name “for the Regional Police Commander”. Mr. Mwamlima had not authorized the preparation of the voucher. The particulars of the first count were as follows:- “The person charged on the 6^th day of January, 1970, in the township and District of Kigoma, Kigoma region, with intent to defraud forged payment voucher of Shs. 1,530/= purporting to have been signed by Superintendent of Police G. H. Mwalima whereas infact the said voucher was not signed by the said G. H. Mwamlima”, and the particulars of the second count were:- “The person charged on the same date, time and place, knowingly and fraudulently uttered a forged payment voucher for Shs. 1,530/= to the Internal Revenue Officer, Kigoma, purporting to be the voucher signed by Superintendent of Police, G. H. Mwamlima”. At the trial court, the appellant had pleaded guilty and the main issue on appeal was whether or not the facts admitted by the appellant did correspond to those in the particular quoted above.

            Held: (1) “The procedure relating to the calling upon the accused person to plead is governed by section 203 of the Criminal Procedure code – Cap. 20. In our view, if it can be clearly shown that an accused person has admitted all the ingredients which constitute the offence charged, it is then proper to enter a plea of guilty. The words “it is true” when used by an accused person may not amount to a plea of guilty, for example, in a case where there may be a defence of self-defence or provocation. As was said by this Court in the case of Rex v. Yonsani Egalu & Others - 9 E. A. C. A. 65, at p. 67 – “In any case in which a conviction is likely to proceed on a plea of guilty (in other words, when an admission by the accused is to be allowed to take the place of the otherwise necessary strict proof of the charge beyond reasonable doubt by the prosecution) it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every constituent and that what he says should be recorded in a form which  will satisfy an appeal court that he fully understood the charge and pleaded guilty to every element of it unequivocally.” In the present case, we think with respect, that the learned trial magistrate should have explained to the appellant in clear language every ingredient of the charges and required him to admit or deny the same and recorded the exact words the appellant used in his admissions or denials, as the case may be, in a form indicating that the appellant fully under stood the charges he unequivocally pleaded thereto. In this case the appellant admitted facts which do not support the offences charged. It is our view that the appellant

did not plead to the offences charged in the first and second counts.” (2) “As regards the third count, the question is whether the acts done by the appellant, assuming there was an intention to steal, were sufficiently proximate to the intended offence. In R. v. Laitwood 4 Cr. App. R. 248, it was said “……….. there was here an act done to commit an offence which formed part of a series which would have constituted the offence if not interrupted………..” that was adopted as the appropriate test in a decision of the Supreme Court of Kenya in Mwandikwa v. R. (1959) E. A. 18 which was followed in a decision of the High Court of Tanganyika in Mussa s/o Saidi v. R. (1962) E. a. 454. In this case the acts done by the appellant preparatory to stealing, that is to say the preparation of the voucher and the requisition and its presentation to the Internal Revenue Officer resulted in a cheque being sent to the district Police commander’s office where the appellant worked. It was seen by Mr. Mwamlima who took it into his possession. Had the appellant taken the cheque, the offence of stealing would have been completed, as he would have had opportunity to dispose of it or deal with it in any manner convenient to him. As it was, even if the appellant had never personally received the proceeds of the cheque, they would, unless the fraud had been detected, have gone tot eh constables named and the Government would have been deprived of that amount. We think that the appellant’s acts were sufficiently established to justify a finding that an attempt to steal the Shs. 1, 530/= had begun.” (3) Appeal allowed in respect of counts one and two but dismissed in respect of count three.