Rex v Hilarius (Criminal Appeal No. 55 of 1949) [1949] EACA 31 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA Before Sir BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda). and AINLEY, J. (Uganda)

## REX, Respondent (Original Prosecutor) υ.

## HILARIUS s/o SHEBRUZA, Appellant (Original Accused) Criminal Appeal No. 55 of 1949

## (Appeal from decision of H. M. High Court of Tanganyika)

Criminal Procedure and Practice—Failure to call certain witnesses—Observations of the Court.

(This case is reported on account of the observations of the Court on the failure to call as witnesses Chiefs and Headmen who have taken part in the early stages of a criminal investigation.—*Editor.*)

Held (5-4-49).—That having regard to all the circumstances the conviction of the appellant was inevitable.

Appeal dismissed.

Appellant absent, unrepresented. Henderson, Attorney General (Uganda) for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—This is an appeal from: the conviction of murder in the High Court of Tanganyika.

The case against the appellant, who was the husband of the deceased woman, rested mainly on circumstantial evidence which, apart from the evidence of the witness Raphael, might not be conclusive of guilt. This witness, however, gave evidence which, if true, makes an inference of guilt irresistible. In the opinion of the learned Judge the witness was a person of integrity and he had no hesitation in accepting his evidence, which was to the effect that he saw the appellant leaving his compound in a hurry and spoke to him about ten minutes after he had heard cries and moans coming from the direction of the appellant's house. Unless this witness could have been mistaken as to the identity of the appellant, this is really conclusive. On this point the learned Judge had fully directed himself and we think that he was perfectly justified in coming to the view that the witness Raphael could not have mistaken the appellant for someone else. Furthermore, there was nothing: in either the prosecution or the defence evidence which negatives the presence of the appellant near his house at the time deposed to by Raphael on the morning. of the crime. Raphael, who seems to have been a person of some education. possessed a watch and he noted the time as being about ten minutes after eight o'clock. Both the assessors also accepted the evidence of Raphael and were of the opinion that the guilt of the appellant had been fully established. The appellant in his Memorandum of Appeal, amongst other points, has sought to attack the evidence of the witness Raphael on the ground that there is a discrepancy in the prosecution evidence as to whether Raphael first told the Sub-Chief what he had seen in the morning or the villagers who were earlier on the scene.

We share the learned Judge's regret that the Sub-Chief was not himself called to depose to the nature of the report made to him by Raphael. It is not the first time that we have noted a tendency in cases coming from this territory that Chiefs and Headmen, who have taken part in the early stages of the criminal investigation, are not called to give evidence. This tendency if it exists is a regrettable one and should be resisted. In the present case, in view of the learned Judge's strong finding of fact that Raphael was both reliable and honest, the discrepancy pointed out by the appellant cannot, in our opinion, affect the issue in this case. The learned trial Judge was entitled to come to the view that he did as to the credibility of Raphael and on the view that he took the conviction of the appellant, having regard to all the other circumstances in the case, was inevitable. The appeal is dismissed.