Wakilii

Rex v Suke and Others (Criminal Appeals Nos. 220, 221 and 222 of 1947)

East African Court of Appeal · [1947] EACA 55 · 1947 Convictions Quashed — New Trial Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions for murder in the High Court of Tanganyika
Decision
Convictions quashed and appellants remanded in custody for retrial before a different Judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

In a joint trial, all accused must be present for every step from the close of the prosecution case until judgment. A trial judge cannot convict some accused before the completion of all defences. Where one accused called a witness after two co-accused had been convicted, those convicted accused had no opportunity to cross-examine that witness or address the court on that evidence. This irregularity was not curable under section 346 of the Tanganyika Criminal Procedure Code as it may have occasioned a failure of justice. The entire joint trial was declared a nullity and a new trial ordered.

Outcome

Convictions quashed and appellants remanded in custody for retrial before a different Judge

Facts

Three appellants were jointly charged with murder, alleged to have acted in concert with a fourth person known as a 'lion-man' to cause the death of the deceased. All three were represented by the same counsel. After the second appellant gave evidence, counsel requested leave to call a witness on his behalf at a later stage. The trial Judge granted leave and proceeded to hear the third appellant's defence. When the witness for the second appellant was not available, the Judge heard addresses and summed up in relation to the first and third appellants only, convicted them of murder, but deferred sentence. Two days later, the second appellant's witness (his wife) testified that he never left home until after the alarm was sounded, providing an alibi. The Judge did not believe the alibi and convicted the second appellant. All three appealed.

Issues

  1. Whether the trial Judge's decision to convict two accused before the completion of the third accused's defence in a joint trial constituted an incurable irregularity.
  2. Whether the irregularity occasioned a failure of justice.
  3. Whether the Court of Appeal should order a new trial.

Orders

  • Convictions of all three appellants quashed.
  • Death sentences set aside.
  • Three appellants remanded in custody to be retried in the High Court by a different Judge.

Rules and key headnotes

Joint Trial — Procedure — Conviction Before Completion of All Defences
In a joint trial, where the prosecution has established a case for each person joined on the information to answer, each step in the proceedings from then on until judgment must be taken in the presence of all accused as joint prisoners at the bar.
Joint Trial — Rights of Co-Accused — Cross-Examination and Address
In joint trials all the accused have a right to hear all the witnesses for the defence, to cross-examine all such witnesses, and address the Court on the evidence of all such witnesses.
Irregularity — Curable Defects — Section 346 Tanganyika Criminal Procedure Code
An irregularity in a joint trial whereby some accused are convicted before the completion of all defences is not curable under section 346 of the Tanganyika Criminal Procedure Code where it may have occasioned a failure of justice, particularly where a subsequently called witness's evidence could have affected the credibility of prosecution witnesses and the convictions already entered.
New Trial — Appellate Court Powers — Circumstances for Ordering Retrial
A Court of Appeal will not order a new trial to allow a prosecution to fill a gap in its case which might have been filled at the first trial, and will hesitate to do so where a nullity was declared on account of an irregularity for which the prosecution was responsible, but may order a new trial where neither condition applies and the joint trial would probably have resulted in convictions had it proceeded on its proper course.

Legislation cited (1)

  • Tanganyika Criminal Procedure Code s.346

Full judgment

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Rex v Suke and Others (Criminal Appeals Nos. 220, 221 and 222 of 1947) [1947] EACA 55 (1 January 1947)
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.