Rex v Samo (Criminal Appeal No. 162 of 1948) [1948] EACA 40 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and MARK-WILSON, AG. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

v.

MWITA $s/o$ SAMO, Appellant (Original Accused) Criminal Appeal No. 162 of 1948

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

Criminal Procedure and Practice-Trial with Assessors-Assessors and Judge coming to different conclusions—Opinions of Assessors not discussed in the judgment—Not advisable practice.

The appellant was convicted of unlawfully attempting to strike one Kiguna with an arrow with intent to maim, disfigure or disable, or to do grievous harm, or to resist lawful arrest, contrary to section 222 (2) Tanganyika Penal Code, and sentenced to three years' imprisonment with hard labour. At the trial the two Assessors held that the appellant did not fire the arrow. The trial Judge had no doubt, on the evidence, as to the appellant's guilt but in his judgment made no reference to the opinions of the Assessors.

Held (12-10-48).—That in all cases where a trial Judge comes to a contrary finding on facts to the unanimous opinion of assessors it is a good practice for the Judge to state in his judgment reasons for his disagreement.

Appeal dismissed.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).-No question of law arises in this appeal. The appellant was convicted on evidence which once accepted fully established his guilt. The story told by the prosecution witnesses was a consistent one and although there was *contra* evidence for the defence the learned Judge who saw the witnesses and had the opportunity of studying their demeanour accepted the Crown's story and rejected that of the defence. This he was fully entitled to do and the responsibility for doing so was his. It is true that both the Assessors came to a different conclusion but the learned Judge was under no obligation to accept their opinions and in fact could not do sounless in agreement with them. The learned Judge has not in his judgment discussed the opinions given by the Assessors. It might have been better had he done so particularly as the reason given by the second Assessor for his rejection of the prosecution evidence is clearly misconceived since there was evidence that the native messenger's party did run away when the appellant produced his bow and fired an arrow.

In all cases where a trial Judge comes to a contrary finding on the facts. to the opinions unanimously shared by the Assessors we think it a good practice for the Judge to state in his judgment reasons for his disagreement.

The appeal is dismissed.