THE Court of Appeal has ordered fresh murder trial of Police Constable, Pacificius Simon, who was convicted of manslaughter and sentenced to 15 years imprisonment for allegedly killing without intention a journalist with private owned Channel Ten Television, Daudi Mwangosi.
Justices Bernard Luanda, Shaban Lila and Rehema Mkuye, when determining an appeal lodged by Simon, as appellant, nullified all proceedings conducted by the High Court in Iringa, quashed the conviction of manslaughter and set aside the sentence imposed by the trial judge.
In their judgment delivered in Iringa Region recently, the justices spotted a procedural irregularity, notably the failure by the trial judge to sum up the evidence tendered by both prosecution and defence to the assessors as required by law.
They observed from the record of appeal that after the defence had closed its case on June 23, 2016, the case was adjourned to June 27, 2016 for the parties to make their final submissions and sum up to the assessor.
However, they said, such record does not contain summing up notes to the assessors. Such failure, according to the justices, goes against section 298 (1) of the Criminal Procedure Act (CPA).
“In our case, it would appear the summing up was done orally. If done orally how are we going to know whether the trial judge sufficiently summed up the case to the assessors?” they queried.
Referring to different previous decided cases, the justices pointed out that the court insisted the summing up notes must be in writing to enable the court satisfy itself whether the trial court sufficiently summed up the case to the assessors.
They said that it was only when the summing up notes were in writing would enable them to see whether, for instance, the assessors addressed the ingredients of the offence of murder, who has the burden of proof and its standards.
“Failure to show the summing up of the case to assessors to have been done in writing vitiates the entire proceedings. It is taken section 298 (1) of the CPA to have not been complied with,” the justices conclusively declared in their judgment dated June 4, 2018.
Mwangosi was killed on September 2, 2012 at Nyololo village at Mufindi District in Iringa Region during a confrontation between police officers and supporters of Chadema during a rally at the village, where the opposition political party was opening a branch.