Rex v Dodo (Cr. App. No. 103/1935.) [1936] EACA 42 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), ABRAHAMS, C. J. (Tanganyika), and FRETZ, Ag. C. J. (Zanzibar).

### REX, Respondent (Original Prosecutor)

#### 1).

# ABYASALI KABULA S/O DODO, Appellant (Original $Accused$ ).

### Cr. App. No. 103/1935.

# Criminal procedure—Important witness not called but merely offered for cross-examination—Undesirability of this practice.

Appellant absent, unrepresented.

Vaughan, Ag. A. G., Zanzibar, for the respondent.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-Within the meaning of the rule laid down in Rex v. Bateman (19 Cr. App. R. 8) the evidence is sufficient to support the conviction. The rule is that before a conviction for manslaughter by negligence can stand there must be $(1)$ a duty to take care, (2) a failure to discharge that duty, (3) that death was due to that default, and finally (4) the negligence must go beyond a mere matter of compensation and show such disregard for life and safety of others as to amount to a crime against the State and conduct deserving of punishment.

There is one important point of procedure to which we desire to draw attention, and that is the undesirability, especially in native cases where the accused is unrepresented, of not calling important witnesses, such as Bumali s/o Waziko in the presesnt case, and merely offering them for cross-examination. In our opinion a native cannot be expected to understand that it is for him to call and question the witness. The appeal is dismissed.