Peter s/o Mwanjobile vs Republic (Criminal Appeal No. 37 of 1998) [1999] TZHC 232 (22 October 1999)

•4 ''3 C01A 0 W. TiW RIGH POURt .0 0 . ATMBYA CIflNM APPEAL NO. 37 0'• 1998. 0 (Original Criminal Case- Nc>. 121 of1997 of Pungwe District Court at Tukuyu' Before: P.N. Matogolo - District Magistrate) ..........: • P1TER S/0 MWANJOBILE ,.. ., .. • .. APPELLANT Versus THE.RRUBLIC o..00e........o,e.a* RF'PONDENT 00 • JUDG4ENT MOSHIJ. 0 . The appellant., Peter.s/o Mwanobile, was arraigned before the dimtrict court of Rungwe district at Tukuyu on an indictment which contained two counts. The second count was in the alternative to The first count. The counts were: First count: Breaking into a buil4ing:: atd committing an offence, contrary to section 296(1). pf the Penal Code. Second count (Alternatively): .Nglec:t to. prevent an offence, contrary to section 383 of the Penal Code. He was acquitted of the first count but convicted of the alternative second count and sentenced to a fine of shs.20 1 000/= or 18 months imprisonment in default. He paid the fine. The conviction and sentence aggrieved him, hence this appeal which was unresisted by the Republic. . These were the material facts established in evidence. The appellant was at all material times a night watchman employed to guard the Ministry of Education building at Tukuyu Boma area which included a materials store, On 7.7.97 h reported for duty at 6.00 pm. He was the only watchman and all was well. :JThe night was dark and it heavily rained throughout. There were no security lighth. Early, in the morning the appellant went round the building and noted some human foot steps behi4d the store. Some paints were on the ground. He notified the District . .. Education Officer who, in turn, notified the Statistics Education Officer, ........•.. 12

UiP4 and. tbLO 8trcaQr. bIgow CP21, WI and PW2 went to the store with the appellant. There was a main gate which one had to open before reacb-Lng the door to the store. Tha main gate was intact. Be.hind the store they found foot steps, some pa.nt, and an -opening at the upper part of the wall with removed boards. It was thought the thieves gained access into the store through that opening. They opened the main gate and, according to PWI and P1,12, found the door to the store broken They -entered tha sto-re and found items scattered around. They (PW1 and PW2) reported the matter at Tukuyu police station and returned to the store with D/Sgt Arsent (PW3) who saw the breakin€ and thought that the thieves had 'entered the store through the opening they made at its rear side. PW2 scanned around the store and caine up with a long list of assortment of it.eas nd nateria.ls -worth slis.7k1 ,859/= she claimed were stolen. There was only her • word on this claim. No audit report was made and produced. The appellant told PW3 and reinterated in his defenc.e at . the .triai that the theft escaped his attention on account of the prohibit ive.ç.onditions of the the heavy rain and the darkness. The conviction of the appellant was founded on several rnisdirections in matters of law whose result is to vitiate the conviction. Firs, there is the question of the burden of proof in criminal cases. The trial court shifted the burden of proof to the appellant by saying that the appellant was the one who had the burden to prove that he was not negligent in his duty. With respect, it is elementary that there is no obligation on the part of the accused to prove his innocence. That innocence musts under the law, be assumed by the court unless guilt could be proved by the prosecution beyond a reasonable doubt. In this case, therefore, the prosecution had the duty to prove beyond reasonable doubt that the appellant was negligent in his duty. Seôondi.y, the trial court imported the doctrine of rea ipsa loquitur into .criminal law when it found the appellant negligent simply on account of that he was on duty that night and that the b'reaking and theft took place that night. This doctrine is applied in civil ........• 13

I., the.fct. of the acci4ent itself is such that it involves a prima facie inference of. negligence on the part of the defendant and no further proof of negligence iA required beyond the accideht itself. It will then be the duty of the defendant to establish that the accident happened without negligence on his part or to give an explanation of the cause of the accident which did not cannate negligence by him. With respect to the trial magistrate, this doctrine can have no place in criminal law where the duty is alwajs on the prosecution to prove a charge beyond reasonable doubt and the burden or duty never shifts. This court, for instance, held in Lawrence Maliki v. R. (1973) Lrt 12: The doctrine of res ipsa loquitur (the matter speaks for itself) whereby, in a civil case, once an accident is negligent on its face, the burden of proving lack of negligence falls on the defendant, has no place in a criminal trial where the burden of proof beyond reasonable doubt never shifts from the prosecution. I would respectfully agree with the learned state attorney that some essential ingredients of the offence charged on the second count were not established. For an offence under section 383 of the Penal Code, it must be established that the appellant had prior knowledge of the theft and took no steps to prevent its commission. There was, however, no evidence to that effect in this case, and I am satisfied, in consequence, that the appellant was entitled to acquittal even on the alternative cont. For the foregoing reasons, I allow the appeal, quash the conviction, set aside the sentence, and hereby order the refund of the fine (shs.20 9 0001=) to the appellant, Peter s/a AT MBEYA. 22 October 1999. • -' .::'d 1. • h --- \ z

.• ~ ).e / •1 \ __ •_- /1 B.P. MOSHI JUDGE,

• For Appellant: Present.
• For Republic: Absent.