VICTOR s/o BUNDALA v. R (1972) HCD 29

Crim. App. 485-D-71; 31/12/71

Mwakasendo Ag. J.

The appellant was convicted on 3 charges of fraudulent false accounting and 4 charges of stealing by public servant c/ss 317(b) and 271 and 265 of the Penal Code respectively. The appellant was employed by the Government of Tanzania and was seconded to the Kilombero Ujamaa Co-operative Ltd. His Salary being paid by Government. At the hearing of his appeal his Counsel drew attention to the fact that the Police Officer who had acted as investigating officer also gave evidence at the trial as well as acted as the public prosecutor.

HELD:

(1) “The point raised by Counsel is of the greatest importance…… I have come across only two decided cases: Jumanne @ Alli s/o Hamisi v. R. (1967) H.C.D. 278 and Gamalieri Mubito v. R. (1961) E.A.C.A. 244. In Hamisi’s case the accused was convicted of theft. Indispensable to the prosecution case was the testimony of the Prosecuting Officer who also did much of the investigation before the case came to trial. On appeal the High Court (Per Cross J.) citing Gamalieri Mubito v. R. held “a failure of justice may well have been occasioned.” The convictions were quashed because according to the appellate Court “there was lacking that appearance of fairness and impartiality which should characterize the administration of the Criminal law. In view of the importance of the evidence of the prosecuting officer the Court could not be sure that there was no failure of justice.” In the instant case it cannot be seriously argued that the evidence of A.S.P. Mbawalla was of any great importance to the success of the prosecution case and therefore the position is definitely different from that which obtained in the Hamisi case. I would accordingly hold that the fact that the prosecution witness acted both as prosecutor and investigating officer did not prejudice the fair trial of the accused.”

(2) “Since all the fraudulent false accounting charges were framed and grounded on the mistaken assumption that the appellant was a servant [of the Co-operative society], I do not think that the convictions on these charges can be properly maintained.” 

(3) “I am more than satisfied that there is more than ample evidence to support the appellant’s conviction on these [theft] charges …… I am further satisfied that in view of what is already stated above the accused is only guilty of simple theft and not theft by servant.”