Rex v Mtata (Cr. App. No. 137 of 1938.) [1938] EACA 141 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya); WHITLEY, C. J. (Uganda); and KNIGHT-BRUCE, Ag. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

$\mathbf{v}$

KATAMBO BIN MTATA, Appellant (Original Accused) Cr. App. No. 137 of 1938.

Appeal from conviction by H. M. High Court of Tanganyika. Criminal Law-Witnesses.

Held $(21-11-38)$ .—That a prosecuting Counsel is not bound to call all the witnesses who gave evidence at the preliminary inquiry. R. v. Abdullah<br>Waneibuge (3 E. A. C. A. 51); R. v. Woodhead (2 Car & Kir. 520) and R. v. Edwards (3 Cox 88), considered and followed.

The facts appear sufficiently from the judgment.

*Houry* with *Keeka* for the appellant.

Paterson, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by Whitley, C. J.).-In this case there were originally two accused, the present appellant and a man called Lemtia. At the preliminary inquiry two witnesses Sikau and Kotemu gaveevidence to the effect that they saw the appellant beat the deceased woman to death whilst another witness Nirasi stated that she saw Lemtia alone inflict the injuries. After the preliminary inquiry and before the trial the Attorney General entered a nolle prosequi against Lemtia and the trial proceeded against the appellant alone. At the trial the prosecution did not call Nirasi as a witness but had her present in Court in order that counsel for the defence might call her if he so desired. He asked that the prosecution should put her in the witness box for him to cross-examine but the learned trial Judge following the decision in the case of Rex v. Abdullah Waneibuge (3 E. A. C. A. 51) ruled that no such obligation rested upon the Crown. In our opinion he was right in so ruling, it being now well established law that the prosecuting counsel is not bound to call all the witnesses who gave evidence at the preliminary inquiry. In spite of the very clear and definite words of the judgment in that case, with everyone of which we are in entire agreement, there seems to be a widespread impression in the minds of defending counsel and also of some Crown Counsel to the effect that the prosecution should at least offer for cross-examination any witness on the depositions whom for some reason or other they do not wish to call. That being so we think it desirable to restate shortly the law on this point.

It is the duty of the prosecution to ensure that such a witness is present in Court in order that he may be available if the defence wish to call him. Prosecuting counsel may, if he thinks fit, submit the witness for cross-examination before the close of the Crown case but it is not incumbent upon him to do so and as Alderson, B., observed in the case of $R$ . v. *Woodhead* (2 Car. and Kir. 520), the only sensible rule is that ordinarily witnesses should be called by the party who

wants their evidence. There may be cases in which a Judge might think it a matter of justice to interfere and direct that such a witness should be called by the Crown but generally speaking as Mr. Justice Erle said in R. v. Edwards (3 Cox 82) we ought to be careful not to over-rule the discretion of counsel who are of course more fully aware of the facts than we can be.

Mr. Houry strongly contended that in the present case the witness Nirasi should have been called by the prosecution, even though they did not rely upon her, because it was disadvantageous to the accused that he by calling her as his witness should lay her open to crossexamination by the Crown. We can see no substance in that contention. No injustice has been done to the accused by the course which the learned judge adopted and we are satisfied that he exercised his discretion properly.

The case depended largely upon the evidence of the two eyewitnesses Sikau and Kotemu. If they were speaking the truth the conviction was clearly a proper one. The learned trial Judge in his judgment expresses the opinion that they gave their evidence in a very straightforward manner and from our perusal of the record it would appear that he was fully justified in accepting their evidence. That being so there is ample evidence to support the conviction and we see no reason to interfere. The appeal is dismissed.