Peter s/o Mwanjobile vs Republic (Criminal Appeal No. 37 of 1998) [1999] TZHC 389 (22 October 1999)

• • .. -.".";;{!:-. ---,"".:'<. J•;-r. ,, ·--:·:~ ... ·-~ . ~ - - .. -- . . ,,. ;'.-."':';I .. '.::: --G__ .... - :,··:·/_x:,::h2-),r--;:1:'_--:.,·4•···-=:__-_-7?::•f.J?if.;:"-:;- .'- 7~ {5"<' '- 0 _1""""" . ·. i·J - '.;·-·::~--? ,••, .:W. TliJ!: .IU<;.R.-OOum' .. OF TANZAN14: ___ __ .i-'io -- -- ---· :-. · ·· · AT- ==MBEYA ' ◄ ... ':· ..,._;,';;:;,,, • CRIMINAL APP. NO. 37 OF '1998 . .. (Original Criminal Case No. 121 of 1997 of . t Rungwe District Court at- Tukuyu Before: F.N. Matogolo - District Magistrate) PErER · S/0 MWANJOBILE • • • • • • • • • • • • • . APPELLANT Versus THE REPUBLIC RESPONDENT JUDG1ENT '.' ... ··•· : ., MOSHI,--J. . ..... \ •'• •· The ppellant, Peter s/o Mwanjobile, was arrai.gnd before th; district , . . . .~ • , . ,-, .. :·. 'f:.-,·:•.; ..... ·,.} •".·: · : ,:. :·:":•i. -.:•, -::< ··t•-l::.'.,'-.;,·•·l•...-;.·•t• '· cour.t pf ·-Rungwe·:distri,ct; at Tukuyu on an indictment whicr conta'ihed two counts. . : . . . ;:\ .. :, .. . tJ.. -:. :'"., :,. :. ; ' t ;'/:'""i,: . The. second .count--- in 'the alternative:t·o the first ,count. The counts were: , • . • • . ! :.:::_ (. . ; :<·•},· ,.,_ . . . First count: Breaking i"nto·a building· and committing an offence, . . : .. :: .· .: . :i.-. . .. : - ·=.·r· contrary to section 296(1'} of the 'l:>'enal Code. --1. =-:=-c ·-.r:,.-:-··.:.· ;-•· .· ;· :·:!_· ·,-:-.:· .. :: ·· ... Second count (Alternatively): .. Neglect to prevent an offence, . .. . ' . . •· .. ("'•. . ·.,,,.:- 1 2.:..~.:.contraxy'·to section 383 of the Penal Code. He was acquitted of the first count; but .. convicted of the. aL-t·ernative second r .. :•.-.: count and sentenced to a fine of shs.20,000/= or 18 mon1;hs iprisonment in default. -:- ... ,-. - He paid th :fine. The conviction and sentence aggrieved.him, hence this appeal 'which was unresisted by the Republic~. These were the.-material fac.ts established in evidence. The· a.ppellant·'-waB . at all material times a night watchman employed to guard ·the -Ministry of<Ediication . ' . ' building at Tukuyu Boma area which ncluded a materials- store. ·on 7.7.97 he · reported for duty at 6.oo pm. He was,. th only watchman and all was well~ The night was darlt and it heavily rained throughUt.- There were o security iit. . ' Farly in the morning the appellant went round. the building:and noted some human . ' foot steps behind th_e store •. Some paints were on the ground •. He ·notified the District - -~ · ..:. - ~ - • - r•. Education Officer who, in turn, notified the Statis'tics Education ·Officer, t • .... •• • •••••••••• _/2 ·!., ... \ •·.•'

ariq_ PW2 went to the storo with the appellant. · There w~ a main gate, which one had to open bdore rea.chizlg tha door to the store!_ :Tha mafii gae - intt. Behind the store they found foot steps some painw~ Sll.d iui, -operiing at the upper . ' .. ,, . . part of th~ wall with removed boards. into the- sto.~ through that opening. ·• . - -· -:·; - --•r.:-· It was thought the thie~ gain~(!. .a'.CCASS They opened-the main gate and; acc6rding to PW1 and PW2, found the oor to the store broken,. . They -entered the store and . . .. . . . found items scattered around. They (PW1 and PW2) reported the matter at Tuku,yu police station and retwned to. the store with D/Sgt Arsent (PW3) who-saw the_ breaking .and thought that the thievbs had entered ,the store through the opening they made at its rear sid. PW2 scanned around the store and came Up with .a long ii, . • . • . '· . . ' • . ' list of· assortmcmt of items and materiais worth .shs 741 850/= she laimed were . . - .. . . ... stolen. · There was only her word oh this claim. No audit' :repo-rt :was made and produced. The appellant told PW3 and reinterated in h:i.s defence at ·the- trial that the theft escaped his attention on account of the prohibitive conditions of the l!igl1t: - the heavy rain and the darkness The conviction of the appellant was founded on several mi.sdirectiohs in . matters of law whose result is to vitiate the conviction. Firstii, there is the question of the burden of proof in criminal cases. The trial court shifted the burden of proof to tp.e appellant by saying that the appellant wi;as 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 'I- .: 1, his innocence That innocence must, under the law; be assumed by the court ' unl,es& guit 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. Secondly, the trial court imported the doctrine of res ipsa loquitur into criminal law when it found _the appellant negligent simply on accont of tha.t he was on duty that night and that · .. 'the ·b;_eakig and theft took place that night. This doctrine is applied in civil /3

........ CA £ i6QDCo wlwFe ~ .fs-ot o:f tb.e aco:i,d,ent itself is such that it involves a prima facie inference of negligence on the part of the def.end.ant .an.cl. ~ further proo.f o£ negligeno-e is. td.re-d beyond tbe accident itself. It will then be the duty of the defendan:t to establish that the accident happened without negligenc_e on his part or to give an explanation of the cause of the accident which-did not -cannote negligence by him. With respect to the trial magistrate, this doctrine can ha-u:e no p:Laoe in criminal law where the duty is always on the prosecution to prove a charge beyond reasonable doubt and the burden or duty never shifs .• This court, for instanc held in Lawrence Mal:i.ki 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. Thirdly, I would respectfully agree with the learned &tate attorney that some estientiaf' iriedients of th offence bharged on- the scnd count' ere -n:t- ·etablishedo For an offence un·der section 383 -f the· Peai Code, it must be' t'afilislied 'that the appellant 'had prior knowledge of the theft and took o· steps to prevent _its commission There ~~, howevr, no evidence to that effect -in this case, ·and I ~ satisfied·, in " ...... consequence, that the appellant was entitled to acqμitt even ori the alternative count For the foregoing reasons, I allow the appeal-, quash· the conviction, - set aside the· entence and hereby order the refund of the fine (shs·.20,000/:) to the appella?lt~ Peter s/o Mwanjobile~ - :..--::---,._ ,.,, 0 l. T O ·"'-. ,/ t;, - . /:' ~>-. ,,, 0' ' ., ,>.?\ (t f};:;J ~) \ } __ g}):J~~:--:-::}j. -!:./ AT MBEYA. ~> -.: ... J_:;,:;-. ':I'.."Y. ··,,,,,.. 7 22 October 1999. ~,Sf;/. . For Appellant: Present •. For Republic: Absent. ~ . . . . ' ~

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B.P. MOSHI JUDGE.