Facts
The two appellants were jointly charged in the District Court of Monduli with robbery with violence contrary to sections 285 and 286 of the Penal Code. Just before the prosecution closed its case they jumped bail and the rest of the proceedings were conducted in their absence. They were convicted and sentenced in absentia in terms of the provisions of s 227 of the Criminal Procedure Act 1985, and sentenced to 8 years imprisonment and an order of compensation of Shs 60,000/= the worth of I the three goats the subject of the charge. Their appeals to the High Court were dismissed, and their prison sentence was enhanced to fifteen years. On further appeal to the Court of Appeal they asserted that, the trial having proceeded in their absence, they were not given the opportunity to be heard.
Held:
(i) Section 226(2) of the Criminal Procedure Act 1985 makes provision for the court to set aside a conviction entered in the absence of the accused if it is satisfied that the absence was due to causes beyond the control of the accused; this accords to the accused person an opportunity to be heard.
(ii) Section 227 of the Criminal Procedure Act 1985, which allows the conviction of an accused person in absentia, can only be invoked when an accused person being tried by a subordinate court fails to appear in court for hearing after the close of the prosecution case.
(iii) Only prior to the close of the prosecution case are the circumstances set out in s 226 of the Criminal Procedure Act 1985 applicable after the close of the prosecution case, s 226 is inapplicable and s 227 takes over.
(iv) As in this case the appellants absconded before the prosecution closed its case, the trial court misapplied the provisions of s 227 of the Criminal Procedure Act 1985.
(v) Having misapplied s 227 of the Criminal Procedure Act 1985, justice in this case would be met if the discretionary powers under s 226(2) of the Act were invoked and have the case re-opened.
No comments:
Post a Comment