Wakilii

Rex v Mtata (Cr. App. No. 137 of 1938.)

East African Court of Appeal · [1938] EACA 141 · 1938 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by High Court of Tanganyika
Decision
Conviction upheld; appellant remains convicted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that prosecuting counsel is not bound to call all witnesses who gave evidence at the preliminary inquiry. The prosecution's duty is to ensure such witnesses are present in court so the defence may call them if desired, but the prosecution is not obliged to submit them for cross-examination. The trial judge properly exercised his discretion in refusing to require the Crown to call a witness whose evidence contradicted other prosecution witnesses. The conviction was upheld based on credible eyewitness testimony.

Outcome

Conviction upheld; appellant remains convicted

Facts

The appellant and another man named Lemtia were originally charged together. At the preliminary inquiry, two witnesses (Sikau and Kotemu) testified that they saw the appellant beat the deceased woman to death, while a third witness (Nirasi) stated she saw only Lemtia inflict the injuries. Before trial, the Attorney General entered a nolle prosequi against Lemtia. At trial, the prosecution did not call Nirasi but had her present in court for the defence to call if desired. Defence counsel requested that the prosecution put Nirasi in the witness box for cross-examination. The trial judge refused, following precedent that the Crown is not obliged to call all preliminary inquiry witnesses. The appellant was convicted based on the testimony of Sikau and Kotemu.

Issues

  1. Whether prosecuting counsel is bound to call all witnesses who gave evidence at the preliminary inquiry.
  2. Whether the trial judge erred in refusing to require the prosecution to call a witness for cross-examination by the defence.

Orders

  • Appeal dismissed.

Rules and key headnotes

Criminal Procedure — Prosecution Witnesses — Duty to Call Witnesses from Preliminary Inquiry
Prosecuting counsel is not bound to call all witnesses who gave evidence at the preliminary inquiry.
Criminal Procedure — Prosecution Witnesses — Availability for Defence
The prosecution's duty is to ensure that witnesses from the preliminary inquiry are present in court so that the defence may call them if desired, but the prosecution is not obliged to submit such witnesses for cross-examination.
Evidence — Witnesses — Calling of Witnesses
The sensible rule is that ordinarily witnesses should be called by the party who wants their evidence, and a judge should be careful not to override the discretion of counsel who are more fully aware of the facts.
Criminal Procedure — Judicial Discretion — Ordering Prosecution to Call Witness
There may be cases in which a judge might think it a matter of justice to direct that a witness should be called by the Crown, but such intervention should be exercised sparingly and with deference to prosecuting counsel's discretion.

Cases cited (3)

  • Rex v Abdullah Waneibuge (3 E.A.C.A. 51)
  • Rex v Woodhead (2 Car & Kir. 520)
  • Rex v Edwards (3 Cox 82)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

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