Wakilii

Rex v Luwanya and Another (Cr. Apps. Nos. 75 & 76 of 1938.)

East African Court of Appeal · [1938] EACA 122 · 1938 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions for murder by the High Court of Tanganyika
Decision
Convictions for murder upheld; appellants remain convicted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the second appellant suffered no injustice from the absence of a defence witness where counsel made no application for adjournment and the witness's evidence would not have advanced the defence. Statements by the deceased expressing fear of the appellants, made long before the attack, were inadmissible under the Indian Evidence Act s.32(1) as they were neither statements as to the cause of death nor as to the circumstances of the transaction resulting in death. The remaining evidence, including eyewitness identification by the deceased's wife, was sufficient to establish guilt beyond reasonable doubt. Appeals dismissed.

Outcome

Convictions for murder upheld; appellants remain convicted

Facts

The appellants were convicted of murdering their brother. At the preliminary inquiry, the second appellant named Balombalila as a witness he wished to call at trial. Balombalila failed to appear at trial, having gone to Songwe near the Congo border. Defence counsel made no application for adjournment, satisfied that reasonable efforts had been made to secure attendance and that the witness was difficult to locate. The prosecution's case rested on eyewitness testimony: Kirondeza, the deceased's youngest wife, testified she was lying awake in bed with the deceased when both accused entered with knives, one stabbing the deceased and the other threatening her. She knew the second accused by sight and there was ample light. The deceased told several persons the two accused had attacked him. Ndayandi, another wife, heard the deceased shout, went into the compound, and was knocked down by the two accused whom she saw running from the deceased's house. The prosecution also adduced evidence of statements by the deceased, made long before the attack, expressing fear that his brothers would kill him. The defence relied on alibi evidence that the second appellant slept at a millet field 500 yards from the scene with Hungu and Balombalila, but Hungu could not prove the appellant had not left the field while Hungu slept.

Issues

  1. Whether the second appellant suffered injustice through inability to call a defence witness who failed to appear at trial and for whom no adjournment was sought.
  2. Whether statements by the deceased expressing fear of the appellants, made a considerable time before the fatal attack, were admissible under the Indian Evidence Act s.32(1).
  3. Whether the remaining evidence, excluding the inadmissible statements, was sufficient to establish guilt beyond reasonable doubt.

Orders

  • Appeals dismissed.

Rules and key headnotes

Criminal Law & Procedure — Right to Call Witnesses — Failure of Defence Witness to Appear — No Application for Adjournment
An accused person must be afforded every reasonable opportunity to call witnesses to support his case, and failure to afford such opportunity is good ground for ordering a new trial. However, where a defence witness fails to appear and counsel makes no application for an adjournment, being satisfied that every reasonable effort has been made to procure attendance and that the witness's expected evidence would not advance the defence case, no injustice results and no retrial is required.
Evidence — Hearsay — Statements by Deceased Persons — Indian Evidence Act s.32(1) — Admissibility
Under the Indian Evidence Act s.32(1), statements by a deceased person are relevant only when made as to the cause of death or as to the circumstances of the transaction which resulted in death. Statements made long before the fatal attack expressing fear of the accused are not statements as to the cause of death, nor are they statements as to the circumstances of the transaction resulting in death. The nexus is not sufficiently close, and admitting such statements would widen the scope of the section too far.
Evidence — Sufficiency of Evidence — Exclusion of Inadmissible Evidence — Test for Conviction
Where inadmissible evidence has been admitted at trial, the appellate court must determine whether sufficient other evidence remains to establish the case beyond reasonable doubt. The test is whether, had the inadmissible evidence been excluded, the trial court must yet have come to the same conclusion.

Legislation cited (1)

  • Indian Evidence Act s.32(1)

Full judgment

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Rex v Luwanya and Another (Cr. Apps. Nos. 75 & 76 of 1938.) [1938] EACA 122 (1 January 1938)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.