Wakilii

Rex v Nyamasaro (Criminal Appeal No. 34 of 1940)

East African Court of Appeal · [1940] EACA 14 · 1940 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder by the High Court of Tanganyika
Decision
Conviction for murder upheld; appellant remains convicted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a trial judge may properly recall a prosecution witness after the close of the defence case where the accused's evidence raises matters that could not have been anticipated and which take the Crown by surprise. The judge's action in recalling a headman to rebut the accused's unexpected claims about his residence, acquaintance with the deceased, and possession of weapons was not open to criticism under English law principles.

Outcome

Conviction for murder upheld; appellant remains convicted

Facts

The appellant was convicted of murdering a woman who was shot outside her hut by an arrow. The deceased named the appellant as her assailant before dying. In his defence, the appellant testified that he lived far from the deceased's hut, had never been near that place at the time of the murder, did not know the deceased, never possessed a bow or arrows, and that people in his district did not carry such weapons. None of these allegations had been put to prosecution witnesses in cross-examination. After the defence closed, the trial judge recalled a headman who testified that the appellant lived close to the deceased's hut, must have known her, and that the claim about not possessing bows and arrows was ridiculous. The appellant appealed on the ground that the judge erred in recalling the witness.

Issues

  1. Whether the trial judge acted correctly in recalling a prosecution witness after the close of the defence case to rebut matters arising ex improviso from the accused's evidence.

Orders

  • Appeal dismissed.
  • Conviction for murder upheld.

Rules and key headnotes

Criminal Procedure — Recall of Witnesses — Matters Arising Ex Improviso
A trial judge may properly recall a prosecution witness after the close of the defence case where the accused's evidence raises matters that could not reasonably have been anticipated by the prosecution and which arise ex improviso, taking the Crown by surprise.
Evidence — Recall of Witnesses — Judge's Discretion
Where an application by Crown Counsel for the recall of a witness to rebut unexpected defence evidence would have succeeded, the trial judge is entitled under English law principles to recall the witness on his own motion.
Evidence — Indian Evidence Act — Powers to Recall Witnesses
Section 165 of the Indian Evidence Act confers wider powers on a court to recall witnesses than exist under English common law, though the precise scope of these powers need not be determined where the recall is justified under English law principles.

Legislation cited (1)

  • Indian Evidence Act s.165

Cases cited (1)

  • Rex v Sullivan [1923] 1 KB 47

Full judgment

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

Rex v Nyamasaro (Criminal Appeal No. 34 of 1940) [1940] EACA 14 (1 January 1940)
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.