Rex v Mkwaya (Criminal Appeal No. 56 of 1946) [1946] EACA 29 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

## MKWAYA s/o KENYA, Appellant (Original Accused) Criminal Appeal No. 56 of 1946

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

Criminal Practice—Absence of prosecutor at trial—Legality of trial.

Observations on the question whether the absence of a prosecutor at a trial of itself vitiates the proceedings.

Case referred to: Rex v. Kiza Bayanga 5 E. A. C. A. 56.

Appellant absent, unrepresented.

## Dreschfield, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-The evidence in this case amply justifies the conviction and we dismiss the appeal. In the course of his judgment the learned trial Judge says: —

"But the case is certainly one in which proper expert investigation and presentation would have greatly assisted the decision of the single point at issue. It is a very regrettable thing that a large and thickly populated and not very law-abiding area like North Mara should be perpetually left without a police officer to investigate and present to the magistrate's court the numerous criminal charges which arise there. As a result, it often happens that a District Officer with a hundred other jobs on his hands has not only to hear the case when it comes to court, but has himself to try to prepare it and prosecute it. That system seems to have the blessing of the East<br>African Court of Appeal—see the judgment in $Rex$ v. Kiza Bayanga 5 E. A. C. A. 56—so I shall only permit myself to say that, in my experience, it often leads to most unsatisfactory results. In the present case it has resulted in no investigation having been made into the question of a possible motive for the killing which would be more convincing than the mere refusal of beer to accused by deceased, or into the ownership of the knife, a most important and—one thinks—a comparatively easily elucidated point. It has also resulted in no evidence being properly available as to the presence or absence of blood on the knife in question for, although the knife (or perhaps I should say a knife) was sent to the Senior Pathologist and a report received from him, there is no evidence to connect this report with the knife found near the scene of the stabbing, presumably because it was the magistrate himself who dispatched the knife and received the report and he could not give evidence of those transactions before himself. For the same reason no doubt the Crown did not seek to put in a sketch plan of the scene, which the Magistrate himself made during the preliminary inquiry, though I am not saying that if the Crown had sought to put it in I would have ruled it inadmissible.

These deficiencies are regrettable but cannot now be helped and the Court must decide the case on the evidence before it."

As we interpret this passage it suggests with implied disapproval that this Court approves of a system which results in all the unsatisfactory consequences which are stated to have occurred in this case.

This is not a legitimate deduction to make from the decision in Kiza's case. What this Court had to consider, as the report clearly shows, is whether the absence of a prosecutor at a trial of itself vitiates the proceedings. A perusal of the judgment should convince any person that the Court in pronouncing it in no sense gave its "blessing" to cases being conducted without a prosecutor, or investigated in such a manner as is likely to lead to unsatisfactory consequences, it carefully confined itself to the question of whether the absence of a prosecutor in the particular case had an invalidating effect on the trial, just as the Court is obliged from time to time in the discharge of its functions to consider whether any apparent or alleged irregularity or illegality has the effect of invalidating a trial.

The following passages in the judgment in Kiza's case make it abundantly clear that this Court does not advocate the presentation of cases without a prosecutor:-

"Obviously it is preferable that there should be a prosecuting officer to conduct the case wherever possible but occasions do arise when none is available and we should in the absence of definite authority be reluctant to hold that on such occasions when witnesses are assembled, possibly from long distances, it would be illegal to proceed with the case without a prosecutor" and "In the present case for the reasons we have stated, we decide that the absence of a prosecutor did not have the effect of rendering the trial a nullity."

We have considered it proper to point out that these comments by the learned Judge were as unfounded as they were unnecessary.