Maduhu Masele vs Republic [1991] TZHC 20 (1 October 1991)


Katiti, J.: Before Maswa District Court, was Maduhu Masele hereafter to be called the appellant, charged with the offence of cattle theft c/s 265 and 268 of the Penal Code Cap. 16. At the end of the day, the said appellant was convicted as charged, and sentenced to six years imprisonment. Aggrieved, the said appellant is appealing against H conviction. While the appellant maintained that he never stole the cattle, he pleaded autrefois acquit - that having been previously acquitted, in RM's Criminal Case No. 107/1987, the certified copy of proceedings of which, he tendered as Exh. D1, he contended, he could not be re-charged or tried again, in Cr. Case 149/1989, on the same I facts, for the same offence.

A The evidence fluidish as it appears, is as follows. The complainant, PW1 Kushoka Butondo, testified to have discovered theft of his four heads of cattle, that each had a KB brand mark - the abbreviation of his name, above mentioned. A year after, PW1 claimed that, the child of the Francis Mangale was found with one of the said cattle, and the Kraal of one Magweshi John, we only learn from one Deshi, who did not give evidence, that the said cow B had been taken to him "by some people", there being no mention of the appellant. But cross - examined by the appellant, the same PW1 said, "I found it in the heads of the Police". But on heels, was PW.2 Raphael s/o C Makwase, who told the court, that, on 17/10/1986 the appellant having attracted suspicion by offering to sell a cow, he had in his possession at Shs. 4,000/=, the Police, in particular PW3 No. C 5180 PC ALEX, was informed and hence the arrest of the appellant, on the 28/12/1988. The appellant defending himself, maintained that one woman D having entrusted him with her cattle, he was arrested, prosecuted, but acquitted. He added, that, this case involves the same subject matter, same witnesses and dates, as were in the prior, or previous case, vide which he was acquitted, hence the plea. He tendered to certified copy of the previous proceedings as Exh. D1. The above E evidence constituted the foundation of the conviction, in the present case.
With respect, testing the foundation on which the conviction is built, I get irresistibly the conviction, that the evidence in its own element is quite fluidish and tenuous. If one Francis Magweshi's child, was found in possession of the F cow, in the kraal of one Magweshi, how come, that none of them gave evidence, is tantalizing in the direction of confusion, and is incomprehensible. Again one Deshi, who too did not give evidence, emerged from no where, G although he is reported by PW1, to have said that the cow "was taken to him by some people". The appellant curiously was not mentioned by this Deshi, nor by PW1 - of course the statement by the said Deshi, being hopelessly hear-say-adding no valuable contribution, to the case.
H Coming to the testimony of PW2, that on the 17th day of October, 1986 the appellant offered to him, a cow for sale, I find myself in an embroiling quagmire, unlike the trial Magistrate. For, if as per PW1 Kushoka Butondo, his four heads of cattle were stolen on the 20/10/1986, the appellant could not have offered one of them for sale on the I 17/10/1986, as this was before the event - theft of the cattle. But curiously, PW3 No. 5180 PC ALEX told the Court, that he arrested the appellant while in possession of the cow on the

28/12/1988, posing a question that, if PW3 Alex received a report from PW2 on the 17/10/1986, the day appellant A is alleged to have offered the cow to PW2 for sale, how the arrest of the appellant, could have taken place on the 28/12/1988, and not on the same 17/10/1986, is derogating from the truth. From the above, I find myself satisfied, that the quality of evidence on recorded, is not capable of proving the charge beyond reasonable doubt, and in my B view, no reasonable criminal justice system, can found conviction on such evidence.
It is without prejudice to the generality of the above, good dutiful to remember, that the appellant did traversely plead, autrefois acquit - that he had been previously tried and acquitted, for the same offence, by the very Court - C pleading in bar to subsequent criminal prosecution. Obviously this plea softly lands us on the provisions of Section 137 of the Criminal Procedure Act 1985, that from the top of the hill, proclaims thus: D
A person who has once been tried by a court of competent jurisdiction for offence and 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 E for the same offence.
The above provisions do proclaim a principle, that places a bar, or an injunction against prosecuting a person, who has previously been convicted/acquitted, by a court of competent jurisdiction, again, on the same facts and for the F same offence, unless the said previous conviction, or acquittal, has been reversed, or set aside. The governing principles in so far as the pleas of autrefois acquit/convict, judicially educative and persuasive were pictorially considered and announced, by no less a judicial brain than, Lord Morris of Borth - Y - Best, in the case of G Connelly v DPP, [1964] 2 All E.R. 401, at page 412 thus:
I pass, therefore to a consideration of the questions which arise concerning the plea of autrefois acquit. In giving my reasons H for my view that the direction given by the learned Judge was entirely correct. I propose to examine some of the authorities of, and to state what I think, are the governing principles.
In my view both principle and authority establish: (i) that a man cannot be tried for a crime in respect of which he has I

A previously been acquitted, or convicted; (ii) that a man cannot be tried for a crime in respect of which he could on some previous indictment, have been convicted, (iii) that the same rule applies, if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal, or a different crime, in respect of which, he has B been acquitted, or could have been convicted, or has been convicted; (iv) that one test, whether the rule applies, is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence would have been sufficient to procure a legal conviction, on the first indictment, either,as to the offence charged, or as to the C offence, of which on the indictment, the accused could have been found guilty, (v) that the test must be subject to the provision, that the offence charged in the second indictment, had in fact been committed at the time of the first charge, (vi) that an a plea of autrefois acquit or autrefois convict, a man is not restricted to a comparison between the later indictment, D and some previous indictment, or the records of the court, but that he may prove by evidence, all such questions as to the identify of persons, dates and facts, as are necessary to enable him to show, that he is being charged with an offence, which is either the same, or substantially the same, as one in respect of which he could have been acquitted, or convicted, or as E one, in respect of which, he could have been convicted, (vii) that what has to be considered, is whether the crime, or offence F charged, in the later indictment, is the same, or is in effect, or is substantially the same, as the crime charged, (or in respect of which there could have been a conviction), in a former indictment, and that it is immaterial that the facts under G examination, or the witnesses being called in the later proceedings, are the same as those in some earlier proceedings;
The principles enunciated in the above case on and about pleas of autrefois acquit/convict, have found their way H into our statute book - as demonstrated by section 137 of the Criminal Procedure Act 1985 above. What therefore for our purposes is principally deducible from the cited provisions are, - one that a person cannot be tried again for the crime in respect of which he has previously been acquitted or convicted, by a court of competent jurisdiction, I unless such acquittal or conviction, has been reversed or set aside, two, whether the plea of autrefois acquit/convict, applies, the test of

whether, the evidence which is necessary to support the second prosecution, or whether the facts that constitute the A second, or subsequent offence, would have been enough to procure a legal conviction or acquittal, on the first prosecution i.e. that the offence charged in the second indictment had in fact been committed at the time of the first charge. B
The autrefois convict/acquit may in my view be proved, or established by evidence rendering comparison between the later indictment and some previous indictment possible i.e.
(i)Comparison of charges or indictments, where possible, by the trial court on the invitation and initiative of the C accused.
(ii)By tendering a certificate of conviction, or as the case may be, of acquittal, relating to that offence, provided the person named in the certificate, as having been convicted or acquitted, of the offence, is the person whose D conviction or acquittal of the offence, is to be proved.
(iii)By tendering and reference to court records, by the clerk of the court, or another officer having custody of the record of the court, where such conviction or acquittal took place, - with sufficient proof of the identity of the person convicted, or acquitted. E
(iv)By adducing such other evidence showing all such questions as to identify of the accused, date, and facts as are necessary to enable him to show that he is being charged with an offence, which is either the same or substantially the same, as the one in respect of which he has been acquitted or convicted. F
The above principles, do pose questions like (i) by whom should the plan of autrefois acquit be pleaded, obvious though the question seems to be, (ii) at what stage should such plea be staged, (iii) on whom does the onus lie, (vi) and the quantum of proof thereof. Considering the above seriatim, and considering that the fundamental principle G here, is that a person is not be prosecuted twice for the same offence, and possibly, the latter being inherently within the knowledge of the accused, then it is the accused person who should plead the same, in order to derive H advantage or benefit there from. Giving serious thought to the question as to the stage, in the proceedings, when the plea could be staged, I think, the question should be approached, with liberality, and in my view the accused person may raise the plea at any time, either as a plea in the bar to the second prosecution, or, at any stage in the I proceedings, before the closure of the defence case. And, as the provisions don't

A prescribe, any procedure to be adopted, then obviously the plea may, either be formal or informal, by the accused person. And delving into the issue of burden of proof, an important aspect, I am given to think and repeat, what is trite law, that, the general rule is that the burden of proof, (onus probandi) lies on the party who asserts the B affirmative of the issue, or question, in dispute. Relevantly associated here therefore, and in this case, the burden of proof lies upon the accused to prove what he asserts - that he previously been acquitted or convicted on the same facts, and of same offence, by a court of competent jurisdiction, and this is only on the balance of probabilities - see C R. v Coughlan and Young (1976) 63 Cr. App. R 33.
Retreating back, or coming home and to the case, it is clear, that the appellant having pleaded autrefois acquit, in D his defence produced a certified copy of the proceedings vide which the appellant was acquitted, on no case to answer under Section 230 of the Criminal Procedure Act 1985. The trial Magistrate rightly found the facts in the earlier case Cr. Case No. 100/1987, totally different from the case before him, and like the trial Magistrate I would E rule by applying the above and hereby rule that, the plea of autrefois acquit could not, and cannot succeed at all.
But given that the prosecution evidence was so weak and fluidish, the conviction is usage to uphold. I therefore allow the appeal, quash conviction, and set aside the sentence, the appellant to be released forthwith, unless he is otherwise legally held.
F Appeal allowed.


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