Virdishi Cautioned 4

UNITED REPUBLIC OF TANZANIA

JUDICIARY

HIGH COURT OF TANZANIA

BUKOBA SUB REGISTRY

AT BUKOBA

ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 66 OF 2023

REPUBLIC

VERSUS VIRDISH PROTAZ @SIVIL

RULING OF THE COURT Date of last Order: 03.10.2024 Date of Ruling:04.10. 2024 BEFORE: G.P. MALATA, J This is ruling in respect of objection for tendering and admissibility of cautioned statement by Virdishi Protas @Sivil recorded by one H.354 D/CPL Samwel sought to be in prove of murder charge against the against the accused. When the prosecution side via PW5 one H.354 D/CPL Samwel attempted to tender the cautioned statement as an exhibit the defence side raised a point law touching competence of the document sought to be tendered. Parties to the case appeared represented by counsels. The Republic appeared represented by Mr. Haruna 1 Shomari learned Senior State Attorney assisted by Ms. Elizabeth Twakazi and Ms. Gloria Lugeye learned State Attorneys whereas the accused appeared represented by Mr. Alli Chamani learned counsel. Mr. Alli Chamani learned counsel raised a point of law to the effect that; The Cautioned Statement is incompetent for being written in contravention of the prescribed procedures set up by the Criminal Procedure Act, Cap. 20 R.E. 2022 and the Evidence Act, Cap.6 R.E.2022. Following the registration of the above stated objection, this court adjourned hearing of the main trial to determine the point of law raised by the defence counsel. Submitting in support of the point of the law, Mr. Alli Chamani learned counsel stated that, the cautioned statement

indicates that, it was prepared under section 57 of the CPA however, it did not abide to section 57 (2) (a) and (b) of the CPA. The section demands that, the recording officer must write questions and answers arising from conversation between himself and accused. The cautioned statement sought to be tendered bear no questions and answers, thus in contravention of Section 57 (2) (a) of the CPA. Furthermore, none compliance of Section 57 (2) (b) of the CPA in that the recording officer did not provide or record the statement made by the accused orally during the interview apart from the story narrated. 2 That section 57 (3) (a) (i) of the CPA demands that, the recording officer should write that, if the accused understand how to read or not and if he knows what did he say to the statement. Regarding compliance of section 57 (3) (a) (i) and 57 (4) (b) of the CPA, he submitted that, the recording officer did not state when accused was not given right to read and make alteration to the cautioned statement. To cement the point, he referred this court to the case of Petro Sule and 3 others vs Republic; Criminal Appeal No 475 of 2020 at Page 20 of the Judgment, where the court of appeal held that, non-compliance of section 57 and 58 of the CPA vitiate the cautioned statement. Submitting in respect of non-compliance of section 50 (1) of the CPA he argued that, the statement was written

after (4) four hours thus contravention of the said section. That no reason is written in the cautioned statement as to why it was written after four (4) hours. Mr. Alli Chamani learned counsel submitted that, the cautioned statement did not indicate at what time the accused was arrested thus in contravention of section 50(1) of the CPA. Since, the cautioned statement is in writing then everything must be reflected in the document. That, the said legal requirement cannot be filled in by oral testimony short of that, it will be contravening section 100 (1) of the Evidence Act, Cap. 6 R.E.

2022. The referred this court, to the case of R. vs 3 Yegela James, Criminal Session Case No. 82 of 2016 at page 5 it and 10 of the Ruling, the High court rejected the cautioned statement on that same ground. He also referred to the case of Emmanuel Malahya V R, Criminal Appeal No. 212 of 2004. He also submitted that, there was non-compliance of section 53 (a), (b) and (c) (i) and (ii) of the CPA in that the statement does not provide for the language conversant to the accused and whether the recording officer did tell the accused rights he had right to communicate with lawyer, relative or friend and not right to call them to witness the recording as he did. He finally submitted that, noncompliance of sections 50, 53 and 58 of the CPA touching human rights issues should not be taken lightly or as mere technicalities. In reply thereof, Mr. Haruna Shomari learned Senior State Attorney submitted that, the preliminary objection is on admissibility of cautioned statement. The rules are clear as set up in the case of DPP vs Sharrif Mohamed @ Athuman and 6 Others, Criminal Appeal No. 74 of 2016 where the court of appeal principled that, at due regard should on relevance, materiality and competence of the document sought to be tendered. The competence criteria are measured by person tendering it and validity of document itself. The caution statement is competent as it was 4 prepared in

fully compliance with section 57 of the CPA. That sections, 50, 53 and 58 of the CPA and section 100 of the Evidence Act, is not applicable. The word “shall” used in section 57 of the CPA does not mean always mandatory but directives. In support thereof, he referred this court to the case of Yustas Katoma vs R, Criminal appeal No. 242 of 2006. As to the issue of time, Mr. Haruna Shomari learned Senior State Attorney submitted that, the referred case of Yegela James is first a High Court decision thus not binding to this court, secondly the circumstances in the case of Yegela is different from the case at hand as the arresting officer and recording officer were different. He submitted further that, there is no first and hard rule that, the time of arrest must be recorded in the statement. It was argued further that, the accused was arrested at Kashai area, Bukoba Municipality and he was transported to Muleba District, where murder incidence occurred. On arrival at Muleba Police Station the accused volunteered to show where he had hidden the properties he robbed from the deceased. That police officers were led to different areas including Gwanseri Village, Bureza Village, Wapi Wapi area and Katoma where the accused had hidden various robbed properties. That delayed the writing of cautioned statement within four hours. Short of that, the exhibits could have been tempered or

destroyed. Mr. Haruna Shomari learned Senior State Attorney referred this court to the case of Rashid Abdallah 5 Athumani and another vs R, Criminal Appeal No. 649 of 2023 where the court of appeal held that, recording officer was justified to write statement beyond the four hours. He also submitted that, before this court there is no issue of involuntariness but mere point of law intending to defeat the voluntarily procured cautioned statement through what the defense side demanding as compliance of style it should have been recorded and look like. Finally, he submitted that, this court be pleased to invoke section 169 (1) (2) (a) to (d) of the CPA in case it is satisfied that, there is such non-compliance, since they are not fatal. He prayed that, the objection be dismissed. By way of rejoinder by Mr. Alli Chamani learned counsel submitted that, the case of DPP vs Sharrif Mohamed @ Athuman and 6 others, is distinguishable. As to applicability of sections 50, 53 and 58 of the CPA in recording the cautioned statement, he stressed that, they are all applicable. In dealing with the case at hand, I find indebted to have my interpretation of the word “cautioned statement”. The word refers to oral or written statement made by a criminal suspect under the police custody after being warned. It is the statement made by the accused after being precaution. It is a statement made 6 after

the accused being made aware of his rights and effect of statement made in case charges will laid be against him. Cautioned statement contains rights and obligations to both accused and recording officer which are; one, to know the police officer who is about to write the statement, two, accused introduce himself to recording police officer, three, accused has to know the offence he stand suspected with, four, accused know the choice he has of adducing it or not, five, accused be informed of his right to call relative, friend or lawyer to witness recording of statement, six, accused be made aware of the effect of statement in case of trial against him is preferred, seven, response by the accused is respect of the stated rights be recorded, eight, confirmation on what the accused stated in response thereto, nine, execution of option made by accused of writing or not, eleven, narration of story may be in the form questions or story telling but not mandatory to be in the form of questions and answers. One may ask one question leading to narration of the whole story of what transpired, twelve, accused has right to know what is recorded in the cautioned statement. He may read by himself or statement be read by recording officer, thirteen, accused must confirm that the statement is correct, fourteen, he must sign on all pages of cautioned statement and its verification part, fifteen,

recording officer has to indicate time for commencing and ending recording the statement and sixteen, recording officer to state time and place of arrest. 7 Having carefully summarised the submissions for and against the point of law, this court with precision assembled that; one, the accused is not questioning the involuntariness of the cautioned statement by either repudiating or retracting it, two, the accused’s concern is on fashioned adopted in recording the cautioned statement which left out some components provided by sections 57(2) (a) and (b), 50, 53 and 58 of the Criminal Procedure Act, Cap.20 R.E. 2022, three, non- compliance of the afore cited provisions cannot be cured by oral testimonies, four, that the afore stated sections are mandatory and its compliance must be reflected in cautioned statement, short of that, vitiates the cautioned statement. Basically, the issue at hand is on admissibility of the cautioned statement which need to be tackled by looking at competence, materiality and relevance. These criteria were set up by the court of appeal in the case of DPP vs Shariff S. Mohamed @ Athumani and 6 others, Criminal Appeal No. 74/2016. When looking at competence issue, the court considers, first, whether the person tendering that, document is competent to so, second, whether the document sought to be tendered is competent, in the sense that, it is in

compliance with legal requirement that; one, the document is a secondary one instead of being a primary, two, lack of certification, if the document is secondary one, three, that it is not part of pleading or documents listed and filed in court, four, that the 8 document failed to meet certain requirement envisaged by law for it to be admissible. As to the materiality issue, the court look at the quality of being relevant or significant. In this aspect, the objector is expected to establish materiality of the objection for it to be sustained. On the relevance, court is concerned with the state of being closely connected or appropriate to what is being done or considered. In the present case, the accused is not repudiating or retracting the cautioned statement in question but solely that, it was recorded on non-compliance with law. In my view, the governing law, is the Criminal Procedure Act which provides for procedure for recording cautioned statement. The procedure so stated has to be complied in particular when it is couched in mandatory context. The effect of failure to fully comply with the same has to be determined with due regard to its prejudicial effect to a party in favour thereof. In other words, not all non- compliances of procedural law leads to rejection of document or nullification of proceedings. In this case, the defence side are lamenting that, the cautioned statement was recorded with non-compliance of sections 57(2) (a) and (b), 50, 53 and 58 of the Criminal Procedure Act, Cap.20 R.E.

2022. Sections 57(2) (a) and (b) (2) Where a person who is being interviewed by a police officer for the purpose of ascertaining whether he has committed an offence makes, during 9 the interview, either orally or in writing, a confession relating to an offence, the police officer shall make, or cause to be made, while the interview is being held or as soon as practicable after the interview is completed, a record in writing, setting out- (a) so far as it is practicable to do so, the questions asked of the person during the interview and the answers given by the person to those questions; (b) particulars of any statement made by the person orally during the interview otherwise The complaint by the defence side is that, in the cautioned statement there is no question and answers but narration of story and recording by the policer officer. In that regard, they submitted that, such styled way of not reflecting some of the steps as per above section makes the cautioned statement invalid. However, there is no complaint that, he was not asked question and in return of the narrated story recorded in the cautioned statement by the police officer. Accused is not refuting at all what is contained in cautioned statement. There is no any allegation of torture, intimidation, repudiation or retraction of any kind by the accused. Despite the questions and answers not being written there in but

it goes without saying that, the statement is product of question and answers posed, thence narration and recording the same. Without it there could be no such information 10 from the accused. It is certainly, that is why the accused is not refuting because he knows what transpired and that what is contained in the cautioned statement reflect the true and correct information as adduced by the accused, only that they want to defeat the cautioned statement for non-indication of the word “questions” and “answers” and other pointed styled in recording which do not catch up what the afore sections directed to be. In determining the admissibility of cautioned statement, courts pay due regard to involuntariness raised by the accused not the style used written cautioned statement unless such concern has to do with denial of right to the accused, thus prejudicing the accused. The court is concerned with confession part of statement, is it a confession within the eyes of law, it factually contested that is to say retracted or repudiated or factually contested in any how to make it invalid. The cautioned statement at hand is not contested in any factually meaning that all what is contained in the cautioned statement are true and correct. What the accused is the style adopted by the recording officer which had no concern with prejudicial to dispensation of justice. In other words, the

accused is telling us that everything is true and correct but style used in recording statement is not correct as instead of showing questions and answers it contains narration. The question is how was he prejudiced. This court was not told at all. 11 In the circumstances, this court finds not in a position to agree with the defence counsel. So long as the court finds that, the cautioned statement is cautioned statement within the qualifications stated herein above and it is not factually repudiated or retracted then, the style adopted by the recording officer which is not in line with section 57(2) (a) and (b) of the Criminal Procedure Act, Cap.20 R.E. 2022 do not vitiate the cautioned statement. I hold that, the circumstances and position in the case of Petro Sule and 3 others vs Republic; Criminal Appeal No 475 of 2020 with the case at hand are completely different as stated herein above, thus in applicable. The second point was on non-compliance of section 50 of the Criminal Procedure Act, in particular on recording statement after four hours. It was submitted that, the statement was written after four hours, that is seven hours, while the law provides for four hours from the time of arrest and that the statement did not provide the reasons for such non-compliance. PW5, the police officer who recorded the cautioned statement testified that, the murder incidence occurred at

Bureza Village, Muleba District in Kagera region, whereas the accused was arrested at Kashai area within Bukoba Municipality which is different Muleba District in Kagera region. That information is confirmed by the cautioned statement itself which reads; 12 “Nilianza shughuli za boda-boda siku ya tarehe 17.09.2022 katika kijiwe cha KASHAI BUKOBA. Katika kijiwe kile cha bodaboda wenzangu walinishitukia na kunieleza kuwa usajili huo wa pikipiki bado haujafika hivyo walipiga simu polisi Bukoba walifika polisi wa Muleba kisha wakanikamata na kunipeleka kituo cha polisi Muleba mjini…” Additionally, PW5 testified that, they travelled with accused to Muleba District where the murder occurred. On arrival at Muleba police station the accused volunteered to show where he had hidden other properties, he robbed from the deceased one Erick Waziri. Accused led the police Officers to Gwanseri Village, Kagoma village, Wapi Wapi area and Bureza village where accused had hidden such items and police officers managed to seize cellular phone made TECNO smart phone, plate number, machete and umbrella, all of which were admitted in court as exhibits, uncontested. The above information is reflected in the cautioned statement. Same piece of evidence is contained in the cautioned statement which is neither retracted nor repudiated by the accused. PW5 gave reasons for his failure to record statement

that, it was due to one travelling from Bukoba Municipality where accused was arrested to Muleba District where murder incidence happened and two, the delay was due to seizing items from the accused he had hidden in different villages as stated herein above. However, it was the defence side submission that, the recording officer ought to 13 have written the reasons thereof, in the cautioned statement. That the absence of the same is fatal and vitiates the cautioned statement. This court is of the opinion that, the circumstances of this case warranted the recording officer to delay as they spent much time travelling from Bukoba to Muleba and went to seize properties hidden by accused in various villages as stated herein above and in the cautioned statement. In my view, the circumstances warranted for such delay, thus justified. The stand adopted by the court of appeal in the Rashid Abdallah Athumani and another vs Republic, Criminal Appeal No. 649 of 2023 is of great help. The court of appeal while discussing similar issue principled that; “By the nature of the offence, we think they had to exhaust the preliminary issues in investigation relating to all suspects in order to avoid interference with the investigation. We are of the view that, given the circumstances, the delay in recording the cautioned statement was justified”. The accused contributed to such delay as he had

hidden such properties in different village far to each other and that he was arrested in Bukoba Municipality. Similar arguments of non-compliance were advanced in respect of sections 53 and 58 of the Criminal Procedure Act. In view thereof, this court is of the settled opinion that, what is envisaged in the complained sections becomes fundamental for consideration, if the document 14 sought to be tendered is retracted or repudiated by the accused. In the present case, the accused is not refuting to have made the cautioned statement but merely complaining that, the document was recorded in non-compliance of the procedures set up by law. This point shares similar position with discussion in non-compliance of section 57(2) (a) and (b) of the Criminal Procedure Act. Indeed, in dispensing justice, courts place much attention on the substantive rights while observing procedural law which have resulted into denial or led miscarriage of justice. If the non-compliance of procedural law has no prejudicial to either party, then such noncompliance will not be accorded weight. Non-compliance of procedure law is not there to provide decoration as to how the document should look like rather it must be, that which prejudiced complaining party. In this case there is no such complaint. Even by assumption, the compliance or non-compliance in the circumstances of this case has nothing to change

what the accused narrated and recorded in the cautioned statement as he is not refuting the truth of what he had spoken and recording by PW5. Neither is he pleading retraction nor repudiation. In my view, the defence side is asking for decoration and outlook rather than materiality effect of factually uncontested statement made by the accused in the cautioned statement. 15 In my therefore, the case Petro Sule and 3 others vs Republic; Criminal Appeal No 475 of 2020 is distinguishable as the court discussed cautioned statement was retracted or repudiated whereas in the present neither of them exist. Since the story contained in the cautioned statement is not in question then non-compliance of the said sections is cosmetic issue with no impact factually. This court has gone through the statement and assembled that, the accused was cautioned before adducing evidence in which he does not retract or repudiate it. The non-inclusion of some information in the caution statement which is not contested factually to be not true and correct or to have been obtained by torture, intimidation or threat cannot in my view invalidate the what is not contested. There is no allegation whatsoever that such non-inclusion of in cautioned statement of what is stated in sections 57(2) (a) and (b), 50, 53 and 58 of the Criminal Procedure Act, Cap.20 R.E. 2022 prejudiced the accused prejudiced the accused in anyhow, thus denial of his substantive rights watering down the validity of factually uncontested cautioned statement. This court is placed to rule that, all the contents of the cautioned statement are true and correct but recording style is not in accordance with the law as stated by sections 57(2) (a) and (b), 50, 53 and 58 of the Criminal Procedure Act, Cap.20 R.E.

2022. That is not fatal, thus untenable. 16 In dispensing justice courts have been in due regard to article 107A (2)(e) of the Constitution of the United Republic of Tanzania, 1977 which reads; “Katika kutoa maamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria, Mahakama zitafuata Kanuni zifuatazo, yaani: (a) …(d) not applicable (e) Kutenda haki bila kufungwa kupita kiasi na masharti ya kiufundi yanaweza kukwamisha haki kutendeka” In the case of Rashid Abdallah Athumani and another vs Republic, Criminal Appeal No. 649 of 2023, the court of appeal referred its decision in the case of Nyerere Nyangue Vs Republic, Criminal Appeal No.67 of 2010 and stated that; “It is not therefore correct to state that every apparent contravention of the provisions of the CPA automatically leads the exclusion of the evidence in question”. That said and done, I am the therefore inclined to agree with submission by Mr. Haruna Shomari learned Senior State Attorney that, the mischief has nothing to do with the substantive part of cautioned statement which is factually uncontested. Consequently, I hereby overrule the objection and proceed to admit the cautioned statement.

IT IS SO ORDERED 17 DATED at BUKOBA this 4th October, 2024. G.P. MALATA

JUDGE 04/10/2024 RULING delivered at BUKOBA this 4th October, 2024. G.P. MALATA

JUDGE 04/10/2024 18