Lucas Gisland vs Republic (Criminal Appeal No.89 of 2021) [2023] TZCA 17465 (1 August 2023)

The appellant, Lucas Gisland, was appealing against a conviction of rape contrary to section 130(1)(2)(e) and 131(1) of the Penal Code, Cap 16. The crime was committed against a minor, a ten-year-old girl, between 02/2/2019 and 06/3/2019. The appellant was accused of sexually abusing the girl multiple times in a secluded area near her home and school. The abuse was discovered when the girl was taken to the hospital for suspected malaria.

The main issue in the appeal was whether the appellant's right to legal representation was denied during his trial, and if so, what effect it had on his conviction. The appellant argued that he was denied the right to be defended by a counsel of his choice, which he claimed resulted in an unfair trial. The court agreed with the appellant, noting that he was not represented by a counsel during the testimonies of three key prosecution witnesses, despite his expressed intention to engage one.

The court referred to section 310 of the Criminal Procedure Act, Cap 20, which gives an accused person the right to be defended by an advocate. The court also cited several previous cases to emphasize the importance of legal representation in ensuring a fair trial. The court found that the denial of the opportunity for legal representation was prejudicial to the appellant's rights and constituted a denial of a fair trial.

In terms of remedy, the court, guided by the case of Fatehali Manji v. Republic [1966] E. A. 341, ordered a retrial. The court nullified all the proceedings of the trial and first appellate courts, quashed the conviction, and set aside the sentence imposed against the appellant. The retrial was ordered to start from just before the testimony of the first prosecution witness, when the appellant's request to engage legal representation was denied.