7.4. Opening of Cases and Presentation of Evidences.

 It has been discussed that the court which has jurisdiction over the case shall fix a date
for hearing and sends a summons with the view of notifying the accused that a charge as
against him is field and he shall appear personally on such a date as mentioned in the
summons. On such date the accused may appear in person or not for different reasons. If
he appears what the court should do first is establishment of his identity thus, his name,
address, occupation, age and other relevant information could be asked with the view of
clearly identifying the person’s identity. In case any of these do not fit to what has been
provided by the public prosecutor in the charge, it may not be necessary even to deep into
the merit of the case unless otherwise the public prosecutor makes a valid objection to
this effect, in which case the court would order as it thinks just.
 Once after the identity of the accused is established and the information fit to what is
already in the charge, the court has to read out and explain the charge to the accused.
Then ask him if he understood what charge he has to answer and if he has got any
objection to the charge.
 It is only after the court settle such objection that it can go in to the merit of the case.
Then, the presiding judge asks the accused whether he pleads guilty or not guilty.
 Once after the accused pleads guilty and this has been recorded by the court, then later
on by its own discretion either convicts the accused forthwith or demand the prosecution
to corroborate the plea with evidence. If the court is convinced that the crime has actually
been committed and it has been committed by the accused and the latter has made
convincing statements and show that it was him and no one else committed the crime, it
shall convict the accused forthwith.
 If not however, it shall order the prosecutor produce the evidence. It is only then after that
the issues of opening of cases comes in to being. Thus, the prosecutor in opening his
case, shall state the charge(s) he proposes to prove and the nature of evidences he tenders
in respect of each fact in doing so the public prosecutor is supposed to do in an impartial
way as being provided under Art 136/1/ of our CPC.
7.4.1. Presentation of evidence

 The public prosecutor shall give the registrar list of witnesses and experts, if he has any,
who shall testify in respect of the charges, and the latter shall issue summons to them
requiring to appear on such day and hour as fixed by the court. The public prosecutor also
has the responsibility for ensuring that all exhibits are produced at the trial in the court
the day fixed for hearing. If any documentary evidence they are annexed to the charge.
 Evidences to be produced by the public prosecutor in support of his allegations are oral,
in most cases, documentary, and exhibits. As documentary evidences are normally
annexed (not to the copy which is to be given to the accused in the earlier practice) to the
charge, the court has the opportunity to examine it in time. Exhibits also as supported by
witnesses who explain about the exhibit shall be produced for the examination of both the
court and the accused during the trial when it is appropriate.
 However it should be noted that production of evidence is to be produced not by the
public prosecutor only for the accused, too, can do the same in support of defense but
only after the prosecutor proves his case to the satisfaction of the court beyond shadow of
doubt normally proof beyond reasonable doubt. How we evaluate the existence proof
beyond reasonable doubt? ( That is- unless the evidences produced by the public
prosecutor proves the case to the satisfaction of the court that the accused committed the
alleged crime the later shall be set free thus, no case motion/no case for prosecution)

7.4.2. Examination of Witnesses

Rules on examination of witnesses

Witnesses shall tender an oath or make an affirmation one by one, by a lay or expert witness
before giving testimony. Witness shall be:
a) Examined – in-chief by the public prosecutor( CPC arti 137):- The public prosecutor
conducts examination – in - chief to his witness to enable him tell the court whatever he
knows about the offence. Thus, The CPC Art 137 provides the forms of questions to be put
during examination-in-chief, it states that:
  Questions put in examination-in-chief shall only relate to facts which are relevant to the
issues to be decided and such facts only of which the witness has direct or indirect
knowledge.
 Questions to be asked at this stage should relate to facts of which the witness has direct
or indirect knowledge. Direct knowledge is acquired by that witness through personal
observation. Depending on the nature of the fact, the witness should observe the fact in
any of or any combination of the five sense organs. To say that a witness has direct
knowledge, he must personally have sense, heard smelt touched/felt or tested the fact if it
is perceivable in such away. It is believed that the witness can give reliable testimony in
relation to such facts. Questions during examination-in-chief may also relate to facts of
which the witness has indirect knowledge. A witness is said to have indirect knowledge
where he has heard about the fact from another person who has observed the fact and
does not personally observe it.
 Often it is argued that testimony given based on indirect knowledge is not acceptable
as it is hearsay for it is based on the testimony of another party who never appears
before the court to be thereby the truthfulness of his testimony is not tested. They
even go ahead in saying that making hearsay evidences admissible is against the
accused’s constitutional right. But, the CPC does not accept the hearsay rule.
 No leading questions shall be put to a witness without the permission of the accused or
his advocate or the public prosecutor, as the case may be.
In principle leading questions are prohibited during examination–in-chief, however, there
are exceptional circumstances where such questions could be asked at this stage if:

1. the accused or his advocate gives his permission; or

2. the question is related only to introductory matter such as the name, occupation
and address of the witness and not the substance of the testimony; or
3. the witness is a minor who does not have good command of language for the
purpose of assisting him; or
4. the witness does not know as to where to start, to refresh his memory; or
5. the witness turns out to be hostile. What is hostile witness?
b) Cross-examined by the accused or his advocate –
  The purpose of cross-examination being to destroy what has already been established
during the examination-in-chief by showing the testimony is not true; it is contradictory
or not reliable, i.e. destroying, falsifying or shading doubt on what has been established
during the examination –in –chief.
 Leading questions are allowed to be put at this stage because as in most cases such
witness is hostile to the adverse party seems very unlikely for such party to find a
suggested answer from the witness.
 To ask questions during cross-examination or not is discretional to the adverse party but
it should be noted that asking or not in most cases has a very significant impact on the
outcome of the case, hence advisable to raise as much relevant questions as possible
c) Re-examined by the public prosecutor
 Re-examination is to be conducted by the party who conducted the examination-
in-chief once after cross examination is over. The purpose of re-examination is to
reestablish what has been demolished during the cross-examination or to clarify
what has been confused during cross-examination.
d) Art 136/4 / of the CPC provides that the court may put any relevant- questions which appear
necessary for the just decision of the case, question to the witness any time.

7.5. Post Evidence Procedure

7.5.1. No Case Motion and Acquittal (article 141)

The court has to evaluate the weight of the evidences based on a certain standard. In criminal
cases, it is the public prosecutor that has the duty to prove his case and only if he proved his case
with the required degree of proof that the accused would be given the chance to defend himself
by producing witnesses if he has or if he wishes to do so. Unless the evidences produced by the
public prosecutor proves the case to the satisfaction of the court that the accused committed the
alleged crime the later shall be set free thus, no case motion/no case for prosecution.
7.5.2. Case for Prosecution (CPC 142)
Where the case is not dispensed pursuant to the above discussion, i.e. Art 141, in other words, if
the court is satisfied with evidences produced and is convinced that the accused had committed
the alleged crime unless rebutted by the evidences to be produced by him it shall require him to
produce all possible evidences he has to defend himself.
7.5.3. Judgment: Conviction/Acquittal (CPC 149)
All the criminal prosecutions are made with the ultimate destination of rendering judgment
which would either be conviction or acquittal. To put it in simple terms, the accused would be
convicted if the evidences produced by the prosecutor convinced the court to the extent of the
required degree that the accused committed the alleged crime and his evidence, if any, could not
rebut such evidences and affects the court’s conviction. On the other hand, is the defense
evidence(s) produced by the accused can falsify the evidence of the prosecution or at least shad a
reasonable doubt, the court must decide for the acquittal of the accused and be released from
prison if had been in custody. It is one of the responsibilities of a judge to give reason for any of
its decisions
CHAPTER 8 Sentencing

8.1 Sentencing Statutes

Where the accused is found guilty, the next step expected from the judge is determining the
punishment deserved for the crime committed. To determine such sentences the judges should
take in consideration the personal circumstances of the accused. Article 88(2) of Criminal code
provides that
“The penalty shall be determined according to the degree of individual guilt, taking into
account the dangerous disposition of the criminal, his antecedents, motive and purpose, his
personal circumstances and standard of education, as well as the gravity of the crime and the
circumstances of its commission”
The question here is that how we can evaluate all these personal circumstance of the accused
before determining the sentence. Since it subjective evaluation, it is difficult to ensure uniformity
of sentence. To tackle the problem, currently sentencing manual No. 2/2006 enacted by Federal
Supreme court. The FSC authorized under article 88(4) to enact manual sentencing in order to
ensure Uniformity and correctness of sentence across the country. Thus we determine the
sentence based on the manual and the related provisions of criminal code.

8.2 Kind of Punishment under Criminal code ( Articles 90-127 of CC)

Under criminal code, punishment divided into two main categories. These are Principal
punishment and Secondary punishments. The principal Punishment again divided in to different
kind of punishment.
1) Principal Punishment
a) Pecuniary Penalties- this includes
 Fine( art. 90 of CC)
 Confiscation (art. 98 of CC)
 Sequestration( art. 99 of CC)
b) Compulsory Labour( art.103 of CC)
c) Penalties Entailing Loss of Liberty
 Simple Imprisonment (art.106 of CC)
 Rigorous Imprisonment (art. 108 of CC)
 Punishment of Death (art. 117 of CC)
2) Secondary Punishments
 Caution, Reprimand, Admonishment and Apology (art.122 of CC)
 Deprivation of Rights (art. 123 of CC)
 Dismissal from the Defence Forces and Reduction in Rank (art.127
of CC)
8.3 Determination of Sentence and fixing the deserved punishment.
As we discussed herein above, where the accused is found guilty, the next step expected from the
court is determining the punishment deserved for the crime committed. To that
the court shall ask the prosecutor whether he has anything to say as regards sentence by way of
aggravation or mitigation as being provided under Art 149/3/ of the CPC. It is at this stage of the
procedure that public prosecutor could reveal to the court aggravating grounds. Once after the
public prosecutor is given the chance to mention aggravating or mitigating grounds to the court
the later shall give to the accused so that he can reply and mention any mitigating grounds he
could raise, if any.
1. General + special aggravating Circumstances (CC art. 84 + 85+ 184-188+ Sentencing
guidelines no 2/2006)
2. General + Special extenuating (mitigating) Circumstances( CC art. 82+83+ 179+180
Sentencing guideline)
After the court heard both circumstance, if the crime is the one which its range of sentence
calculated under the manual, the next step is identifying the initial range in which punishment
selected for the crime is identified under the manual.
Then after we identified the initial range, we will add by number of aggravating
circumstance and we will subtract by number of mitigating circumstance. Lastly we
will reach at the last range of sentences. Then we will decides the final pushment
under the last range.
For example- Let us say Mr. Xiqefata killed Mr. Jarjara shooting him by pistol. In
course of proceeding it is proved that Mr. Jarjara first insulted Mr Xiqefata then beat
him by box. Mr. Xiqeta stayed tolerant when Mr Jarjara did as such. Lastly he
distressed by conduct of Mr. Jarjara and took up his pistol and killed him. He then
accused of for ordinary homicide and convicted under article 540 of CC Code. Public
Prosecutor presented 3 aggravating circumstance, and advocates of Mr. Xiqefata
presented 2 mitigating circumstance. How do you fix the last deserved punishment
based on manual and CC? Refer the manual.
If the crime is one which the range of crime is not calculated by the Sentencing manual, we have
to calculate according to art. 19 of S.Guideline..
 First we have identify and determine with which kind of punishment
provided under the specific provision we convicted the accused. If there are
alternative punishment among simple and rigorous punishment. We must
first identity with which kind of punishment we going to punish the accused
as per art. 19(2)
 Then we have divided the crime as low level, medium or high level crime as
per article 19(3)
 Then we divides the punishment under specific provision in to four as per
arti. 19(7)
 Then we identify as range 1, range 2, range 3 and range 4. Then for low
level we determine the initial punishment in range 1, for medium level in
range 2, and for high level in range 3.
  Then we go to table that attached to the manual and determine under which
arrangement it falls. Then adding based on aggravating circumstance and
subtracting by mitigating circumstance we will decide the last punishment.
For instance, if person arrested by police while he has possession of Narcotic medicine in his bag
to transport from Nekemte to Gimbi without authorization from concerned government organ.
Then he accused convicted under article 525(1b) of CC. Public Prosecutor presented 2 and the
advocate of the accused presented three mitigating circumstance. How do you calculate to
determine the sentence and fix the deserved Punishment for the crime?