Republic vs Msusa S/O Ally [1987] TZHC 44 (1 December 1987)


Kazimoto, J.:  On 27/12/86 the accused was brought before Tunduru District court D and according to the record the accused was not required to plead to the facts.  The record does not show with what offence he was charged.  However on 9/1/87 the accused was charged with assault causing actual bodily harm c/s 241 of the Penal Code.  He pleaded guilty and upon admitting the facts he was convicted on his own plea and E sentenced to 18 months imprisonment. After his conviction and sentence the complainant died.  The accused was then charged with murder of the complainant.  The learned Senior District Magistrate has queried whether the conviction and sentence of the accused which he has entered against the accused can still stand in view of the fact that F the accused is now charged with murder. Section 137 of the Criminal Procedure Act 1985 provides:
   A person who has once been tried by a Court of competent jurisdiction for an offence and G convicted or acquitted of such offence shall, while such conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.
and Section 138 of the Criminal Procedure Act 1985 also states as follows: H
   A person convicted or acquitted of any offence may be afterwards tried for any other offence I with which he might have been charged on the former trial under subsection (1) of Section 134.

The learned State Attorney has argued that the provision of section 137 of the Criminal A Procedure Act 1985 applies only when the facts in the second charge are substantially the same as the facts in the former charge.  He submits that as the accused was convicted of assault a plea of autrefois convict cannot be raised to a charge of murder as these are different offences, although they may have arisen out of the same facts.  He B relied on the cases of R v Morris [1967] 10 Cox Criminal Cases P 480. R v Miles [1890] 24 QBD 423 and R v Thomas [1949] 2 ALL ER 662.  He submits that the principles in these cases apply equally to section 137 of the Criminal Procedure Act 1985 and that the murder charge has nothing to do with the offence of assault causing C actual bodily harm.
In R v Thomas [1949]2 ALL ER 662 the accused inflicted serious wounds on his wife with a knife and for that offence he was charged and convicted of felonious wounding with intent to murder.  At the time of his conviction his wife was still being hospitalised D but she died later from the wounds she received from the accused.  The accused was subsquently charged with murder.  the accused raised the plea of autrefois convict.  Humphreys, J. after considering R v Morris (supra) and R v Miles (supra) held that:
   Although, to prove murder, it was assential to prove the assault adjudicated on at the time of E the conviction of felonious wounding, that conviction could not be pleaded in bar to the indictment for murder because the offence of murder only arose when the appellant's wife died. F
The decision in R v Thomas (supra) was followed by the High Court of Kenya in R v Absolom s/o Mohanga and Wilson s/o Wasike [1957] EA 660.  In this case the respondents were policemen.  It was alleged that they took two women from the prison G cells and had carnal knowledge with them without their consent.  They were charged with conduct to the prejudice of good order and discipline under s.41 (44) of the Police Force Ordinance 1948.  The charge was heard in accordance with the orderly room procedure and they were convicted and sentenced.  Later they were charged with rape H and they raised the pleas of autrefois convict.  The trial court upheld the defence and on appeal by the Crown Rudd, Ag. C.J.:
   The offence which was the subject of the orderly room charge was certainly based on the I same facts but it was not the offence of rape, for the plea in bar to be effectual, the previous

conviction must be for the same, or at least, practically the same offence as that A subsequently charged.
These are great persuasive authorities and they have stated the principles upon which a plea of autrefois convict can be pleaded successfully.  In the present case the facts B which gave rise to the conviction of assault would appear to be the same in the murder case but the offences are distinct and separate.  Applying the principles in R v Morris, R v Miles, R v Thomas and R v Absolom s/o Mohanga and Wilson s/o Wasike (supra) I hold that the accused in this case cannot rely on the plea of autrefois convict to the C charge of murder.  The conviction entered against the accused under section 241 of the Penal Code prior to the death of the complainant, and not withstanding the subsequent charge of murder is proper and still stands as valid in law.
D Order accordingly.


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