Rex v Shipemba (Cr. App. No. 125/1938) [1938] EACA 139 (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) $v$ .

MASHIMBA BIN SHIPEMBA, Appellant (Original accused) Cr. App. No. 125/1938

Appeal from conviction by H. M. High Court of Tanganyika Criminal Procedure—Evidence—Deposition—Attendance of witnesses.

Held (21-10-38).—That where Counsel for the defence attacks the prosecution case by drawing attention to discrepancies between the depositions and the evidence at the trial he should have the depositions put in evidence.

Appellant, absent, unrepresented.

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

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—When one makes every allowance for the discrepancies existing between the depositions and the evidence at the trial and excludes the statement made by the appellant to the village headman which was probably a confession and so inadmissible under section 25 of the Indian Evidence Act, there remains abundant evidence to convict the appel-The appeal will therefore be dismissed. lant.

There are two matters we should like to refer to; one is that where counsel for the defence attacks the prosecution case by drawing attention to such discrepancies as we have referred to, he should have the depositions put in as evidence; the other is the desirability of having not only all Crown witnesses present at the trial but also defence witnesses for whom the appellant has asked in the lower court. In the present case at the same time we have no reason for not thinking that all reasonable steps were taken to have in attendance the two witnesses who did not appear and incidentally counsel for the accused at the trial intimated that he did not wish to call them.