Mfalali, J.A., delivered the following considered judgment of the Court: F
The appellant Dawido Qumunga was charged and convicted of murder by the High Court sitting at Arusha (Justice Mrs Munuo). Upon this conviction he was by operation of law sentenced to death. He lodged his appeal against both conviction and sentence.
In this appeal, Mr Merinyo, Counsel for the appellant argued two grounds of appeal. Firstly, that the G learned Judge erred in law in not summoning to testify during the trial the doctor who performed the postmortem examination on the body of the deceased, and secondly that the honourable Judge erred in her assessment of the evidence relating to the causation of death otherwise she would have held H that the cause of death had not been established.
Considering the view we have taken of the entire proceedings in the High Court, we do not intend to go into the details of the merits of the case but we wish to state that the complaints embodied in the two grounds of appeal are part of a larger error committed by the learned Trial Judge. This error I consisted in allowing the trial to
A proceed without the appellant having the assistance of counsel. When the trial of the appellant opened on 28 September 1992, the following exchange took place between the Court and the accused:
Court to Accused:
B Mr Merinyo, learned advocate who was assigned the defence brief under legal aid is reported ill, so he cannot appear. The case will therefore have to be adjourned to another session.
Accused:
I have been in custody for a long time. Let the case proceed without defence counsel.
C Order:
Trial to proceed.
There was not the slightest attempt by the Court to dissuade the appellant from this prayer and warn D him of the dangers inherent in going it alone in such a serious charge. The Court did not warn the appellant of the pitfalls that awaited him in what to him was surely an unsurveyed terrain. The Court let him walk the unsurveyed terrain, the consequences as expected in such a serious charge were disastrous. In the course of the trial, he was faced with three legal issues which without legal E assistance proved too much not only for him but for the Court which also had to proceed without the benefit of legal assistance from the defence side.
The first problem was that raised in the first ground of appeal namely the non-calling of the doctor F who performed the post mortem examination on the body of the deceased. This involved non-compliance with s 291 of the Criminal Procedure Act 1985, which provides as follows:
`Section 291 -
G (1) In any trial before the High Court, any document purporting to be a report signed by a medical witness upon a purely medical or surgical matter shall be receivable in evidence save that this subsection shall not apply unless reasonable notice of the intention to produce the document at the trial, together with a copy of the H document has been given to the accused or his advocate.
. . .
(3) Where any such evidence is received in evidence the Court may, if it thinks fit, and shall, if so requested by the accused or his advocate, summon and examine or make available for cross-examination, the person I who made the report, and the Court shall inform the accused of his right to require the
person who made the report to be summoned in accordance with the provision of this subsection.' A
This is a mandatory legal provision requiring that an accused must be informed of these provisions to enable him decide whether or not he wants the doctor to be called. We think that the right created B by this section is so vital that at every trial where the accused is unrepresented the Court must make it known to the accused. This is because the presence of the doctor in the witness box can make a difference between a conviction for murder, manslaughter or even an acquittal depending on his elucidation of the cause of death recorded in the post mortem report. This brings us to the C second problem faced by the appellant at the trial, namely the deceased's cause of death. There is so much that was left unsaid in the post mortem report exh P1 that only the physical presence of the doctor in the witness box could have cleared or filled the empty gaps. But as we have pointed out, all D this was unsurveyed terrain for the appellant. How was he expected to know of his legal rights under s 291? We are satisfied that had legal assistance been available to the appellant at the trial as it was at the taking of the plea on 27 August 1991, the question of compliance with s 291 would have E been raised as it was on 27 August 1991 when Counsel gave notice that at the trial the defence would require the physical attendance of the doctor who performed the post mortem examination. When therefore the trial opened on 28 September 1992 without Defence Counsel, both the Court and the Defence side were affected. There was no one to remind the Court of the mandatory provisions F of s 291.
The third problem was the conduct of the trial within a trial which arose in the course of the hearing. The conduct and procedure of a trial within a trial along the lines laid down by the Court of Appeal for GEastern Africa in the case of Kinyori s/o Karuditu v Reginam (1) is difficult enough even with the assistance of Counsel, how much more difficult it must have been for an unassisted villager! We therefore ask ourselves: would the presence of a doctor have made any difference? Would the H presence of Counsel made any difference in the conduct of the appellant's defence as a whole? If the answer to both these question is in the affirmative, then we cannot say that the appellant had a fair and just trial. We are not saying that the absence of defence Counsel rendered the trial null and void, we are saying that the absence of Counsel in a trial involving a charge carrying the death I penalty, deprived the Trial
A Court of assistance so vital that we are unable to say that the appellant had a fair and just trial. We realise that the Trial Court acted on the wishes of the accused, who, tired of being in remand for a long time, wanted as it were to get on with it and be done with it as soon as possible. But the Court should not have lost sight of the fact that hurried justice is as much denied as delayed justice.
B Mrs Sumari who appeared for the Republic informed us that the Republic did not support the appellant's conviction almost for the same reasons advanced by her colleague Counsel for the appellant. But she prayed either for a retrial of the appellant or the calling of the doctor before this C Court to give additional evidence. On the other hand Mr Merinyo thought that a retrial or calling the doctor would not serve any useful purpose, so he called for the acquittal of the appellant.
D On our part, we think that considering other evidence on record, we do not think acquitting the appellant would be fair and just. Since the non-calling of the doctor was not the only legal problem facing the appellant at the trial, calling him to give evidence before us, would not serve any purpose since the other problems we have demonstrated caused by the absence of Defence Counsel at the E trial would remain unattended.
In the circumstances we are satisfied that the appellant's conviction cannot be supported. We accordingly quash it and set aside the sentence of death. But we order the retrial of the appellant F before another judge according to law.
A
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