Monday, January 21, 2013

Magistrate’s blunder makes rape suspect face retrial


By Wahome Thuku
Kenya: The transition of criminal cases from one court to another in Kenya is still a matter of concern.
Though the law provides explicit procedures to be followed when one judicial officer takes over a partly heard case from another officer, the process is still a source of delays in full determination of cases and a cause for miscarriage of justice. Here is a case scenario.
In March 2006, Antony Musee Matinge was charged before a Machakos magistrate court with defiling a girl, 16, contrary to Section 145(1) of the Penal Code. He was accused of having committed the offence on March 7, 2006 in Mwingi District of Eastern Province.
The suspect was charged before Senior Resident Magistrate J K Ngarngar. He denied the charge. The magistrate heard from a witness and thereafter on June 26, 2007, the case was taken over by another magistrate, S Ongeri.
When the case went before Ongeri, the lawyer representing the accused told the court that they wished to have the case proceed from where it had reached and the new magistrate agreed.
Section 200(3) of the Criminal Procedure Code states that where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be summoned and reheard and the succeeding magistrate shall inform the accused person of that right.
After a full trial, he was convicted but on a different law, which is section 8 (2) of the Sexual Offences Act.
Probation report
The magistrate while reading the judgment said; “Pursuant to transitional provisions contained under Section 48 of Sexual Offences Act, I hereby substitute the charge of defilement under Section 145(1) of the Penal Code with the charge of defilement under section 8(2) of the Sexual Offences Act and subsequently convict the accused accordingly under section 215 of the Criminal Procedure Code.”
The magistrate also ordered for the production of a probation report on the accused. After reading it, he sentenced Musee to 20 years in jail.
Musee filed appeal against the conviction and sentence at the High Court. He argued, among other grounds, that the magistrate erred in law and fact by convicting him for defilement on the basis of the evidence by the complainant alone.
He further claimed the magistrate erred in law and fact by failing to adhere to the provisions of section 200 of the Criminal Procedure Code when succeeding the first magistrate. High Court Judge George Dulu heard the appeal.
The State opposed the appeal saying the magistrate had considered two issues.
One was whether the girl had been defiled and second was if the suspect was identified as the culprit.
The State argued that a clinical officer, who examined the complainant, had confirmed the act of defilement. On the other hand, Musee was well known to the girl and her grandmother. The incident occurred during the day and the man had been properly identified. He said under the Sexual Offences Act, the 20-year jail term was not legal, as the sentence provided by law was life imprisonment.
Justice Dulu pointed out the legal requirement to be complied with when one magistrate takes over a case from another under Section 200 of the Criminal Procedure Code.
“The above provisions of the law are couched in mandatory terms. It is the accused person, and not the advocate who must be informed by the court of the right to re-summon witnesses. He is also the person to state whether or not the case should proceed without recalling witnesses. It is not his advocate to do so on his behalf,” Dulu said.
Recall witness
In the case before him, there was nothing on record to show that Mr Ongeri had informed Musee of his right to recall witnesses. There was nothing to indicate that he chose not to recall the witness who had already testified before the first magistrate.
“His advocate could not respond for him. The response has to be that of the accused. The omission by the trial court was fatal to the proceedings,” the judge held.
He said Musee’s appeal had to succeed on that technicality.
The judge also considered an argument by the accused that he had been kept in police custody for longer period than the 24 hours provided by the Constitution before being taken to court.
Dulu, however, ruled that if the allegation was true, the position of the law was that violation of constitutional rights would be compensated in a claim for damages and did not necessarily result in an acquittal in a criminal case.
The judge looked at the nature of the case and the allegations of defilement made against Musee. He said considering the evidence on record, he was of the view that if the same evidence was tendered afresh before another magistrate court it could result in another conviction of the accused.
“I am, therefore, of the view that this is a proper case to order a retrial, as the offence is a serious one on the person,” the judge ruled.
Justice Dulu pointed out the legal requirement to be complied with when one magistrate takes over a case from another under Section 200 of the Criminal Procedure Code.
“The above provisions of the law are couched in mandatory terms. It is the accused person, and not the advocate who must be informed by the court of the right to re-summon witnesses. He is also the person to state whether or not the case should proceed without recalling witnesses. It is not his advocate to do so on his behalf,” Dulu said.
Recall witness
In the case before him, there was nothing on record to show that Mr Ongeri had informed Musee of his right to recall witnesses. There was nothing to indicate that he chose not to recall the witness who had already testified before the first magistrate.
“His advocate could not respond for him. The response has to be that of the accused. The omission by the trial court was fatal to the proceedings,” the judge held.
He said Musee’s appeal had to succeed on that technicality.
The judge also considered an argument by the accused that he had been kept in police custody for longer period than the 24 hours provided by the Constitution before being taken to court.
Dulu, however, ruled that if the allegation was true, the position of the law was that violation of constitutional rights would be compensated in a claim for damages and did not necessarily result in an acquittal in a criminal case.
The judge looked at the nature of the case and the allegations of defilement made against Musee. He said considering the evidence on record, he was of the view that if the same evidence was tendered afresh before another magistrate court it could result in another conviction of the accused.
“I am, therefore, of the view that this is a proper case to order a retrial, as the offence is a serious one on the person,” the judge ruled.
Seven years
With that, he allowed Musee’s appeal, quashed the conviction and set aside the sentence. He ordered that another magistrate other than the two who had handled the case conduct a retrial.
The court ordered that the accused remains in custody and be produced before the new magistrate at Machakos on Friday last week to be charged afresh and tried for the same offence.
When Dulu delivered the judgement on December 13, last year, Musee had already been in custody for close to seven years and had served part of the 20-year sentence.
Even with fresh evidence in court, the trial before the magistrate court took four years to be concluded. Should the retrial take a similar period of time, it would be concluded in 2017 and if convicted he would be entitled to appeal all the way to the Supreme Court, if need be.
The writer is a court reporter with the Standard Group
Email: iwahome@standardmedia.co.ke






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