Peter s/o Mwanjobile vs Republic (Criminal Appeal No. 37 of 1998) [1999] TZHC 60 (22 October 1999)

AT MBFYA CRIMINAL APPEAL NO. 37 OF 1998 (Original Criminal Case IZI of 1997 of Rungwe District Court at TukuPu Before: F.N. Matogolo - District Magistrate) PETER s/o MWANJOBILE •.., .. ,... APPELLANT Versus THEREE!UBLIC .....................RESPONDENT JUDENT MOSHI 1 J. The appeUen, Peter s/o Mwanjobile, was arraigned. before the district court of Rungwe district at Tukuyu on an indictment which contained. two counta.. The second count was in the alternative to the first count. The counts were: First count: Breaking into a building and committing an offence, contrary to section 296(1) of the Penal Code. Second count (Alternatively): Neglect 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.20,000/= 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 he, reported foi' duty at 6.00 pm. He was the only watchman and all was well. The night was dak and it heavily rained throughout. There were no security lights. Early in the morning the appellant went round the building and noted some human foot steps behind the store. Some paints were on the ground. He notified the District -. Education Officer whQ, in turn, notified the Statistics Education Qfficer, .......•.,. 12

wju ie ajrpej.iant. Tnere was a main gate wnicn Ofl had to, open before zeaching 'the door to the store. Tha main gate was intact. Behind the store they found foot steps, se pa nt, and an opening at the upper part of the' wall with removed boards • It was thought the thieves gained access into. th& store through that opening. They opened the main gate and, according to PW1 and PW2, found the door to the store broken, They 'entered the store and found items scattered around. They (PWI and PW2) reported the matter at Tukuyu police station and returned to. the store with D/Sgt Arsent (PW3) who saw the breaking 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 items and materials worth shs,741 ,850/= 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 defence at the trial that the theft escaped his attention on account of the prohibitive conditions of the d.ght. - the heavy rain and the darkness. The conviction of' the appellant was founded on several misdirections in matters of law whose .result'is' to vitiate the conviction. Firstly, there is the question of the .bur4en of proof 'in àriminal cases. The trial court shifted the burden of proof to the. ppeIlant 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 obI4gation.onthe part of the accused to prove his innocence. That innocence must,.. 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. Secondly, the trial court imported the doctrine of res 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 breaking and theft took place that night. This doctrine is applied in civil ••eIe..S /3

a prima fàcie inference of negligence on the p.rt of the defendant and no further proof of negligence is re4uired beyond the accident 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 osuse of the accident which did not cannote negligence by him. With respect to the trial magistratej this doctrine can have no place in criminal law where the duty is always 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. Thiry, 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 count. For the foregoing reasons, I allow the appeal, quash the conviction, set aside the sentence, and hereby order the refund of the fine (shs,20,000/=) to the appellant, Peter s/o Mwanjobile. : B,P, Mc14I JUDiE. AT MBEYA. --

22 October 1999.

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