the republic vs elija thomas patrice anthony patrick 2023 tzhc 23170 24 november 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY AT TARIME)

ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE No. 163 OF 2022

THE REPUBLIC v. ELIJA THOMAS PATRICK @ PATRICE ANTHONY PATRICK

RULING 24.11.2023 & 24.11.2023 Mtulya, J.: On 22nd November 2023, the Republic had lodged a notice of tendering additional exhibit in the instant case, called One Flash Drive (USB Drive) make Kioxia sized 32 GB labelled NMB (the Flash Drive) which its substance of evidence was cited by Mr. Audax Masaki (PW9) during hearing of the present case and it is also indicated in Committal Proceedings in the District Court of Tarime at Tarime (the district court) in Preliminary Inquiry Criminal Case No. 12 of 2021 (the PI case). The notice was registered under the enactment of section 289 (1) of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the Act), and was served to the Defence on the same day. Today, the Republic had brought in this court police officer Aristides i Eustadius Kasiga (PW13) to identify and admit the Flash Drive in the case. The reasoning of bringing PW13 to tender the intended exhibit, according to the Republic, is that PW13 was in possession of the Flash Drive and the practice is acceptable by the Court of Appeal (the Court) in the precedent of the Director of Public Prosecutions v. Mirzai Pirbakhshi @ Hadji & Three Others, Criminal Appeal No. 493 of 2016. However, the thinking was protested by the Defence and have produced a total of ten (10) complaints, namely: First, the notice registered in the case shows that the additional exhibit is Flash Drive (USB Drive)

whereas PW13 prays to tender Flash Disk, second, the Flash Disk was not recorded in the list of exhibits during committal proceedings at the district court of Tarime at Tarime; third, it is difficult to test authenticity of the Flash Disk; fourth, the Flash Disk was brought today at the surprise of the accused; and fifth, PW13 is not a maker of the Flash Disk; sixth, Audax Masaki was brought in the case as PW9, but had declined to tender the Flash Disk; seventh, PW9 did not identify the Flash Disk during his testimony; Eighth, the contents of the Flash Disk was not displayed during committal proceedings or given to the defence side to access the information in it; ninth, PW13 is not the owner or maker of the Flash Disk and finally the prayer of 2 PW13 breaches section 246 (2) of the Act and sections 23 and 34B (2) of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act). In replying the listed complaints, Mr. Tawabu Yahya Issa, learned State Attorney for the Republic, had produced a brief submission contending that all the complaints of the defence side are captured by the notice registered by the Republic on 22nd November 2023. When he was prompted of the reasons of saying so, Mr. Tawabu had produced a total of seven (7) reasons, viz. First, the notice was to let the defence side aware on the exhibit, and actually had the knowledge on the same; second, the notice was filed

under section 289 (1) of the Act, which means that the untended exhibit was not listed in the list of exhibits during committal proceedings; third, the question of Flash Disk or Flash Driver is a matter of evidence, and not law hence cannot be brought at this stage; fourth, the test at admission stage of document is knowledge of the intended exhibit prayed to be tendered and not authenticity of the intended exhibit; fifth, there is precedent of the Court in DPP v. Mirzai Pirbakhshi @ Hadji & Three Others, Criminal Appeal No. 493 of 2016, which had already interpreted on possessor of intended exhibits; sixth, the substance of the intended exhibit cannot be given to the defence as it was in a sealed materials after the analysis of witness PW13, who prays to 3 tender the same; and finally, sections 23 and 34B (2) of the Evidence Act do not regulate admission of exhibits, but related to admission of exhibits for persons who cannot be found to testify. Rejoining the submission of Mr. Tawabu, the defence side insisted that the Flash Disk was brought in this court today by PW13 without any knowledge of the accused, and that it was within the Republic negligence to decline to give the defence a copy of the same for the defence side to access the materials in the Flash Disk. In the opinion of the defence side, Mr. Tawabu had conceded that the notice reflects Flash Drive whereas PW13

prays to tender Flash Disk. On the same note, the defence side complained that PW12 had testified that the Flash Disk was not labelled any marks, whereas today PW13 says the Flash has marks. In my opinion, I think, the present dispute concerns interpretation of section 246 (2) of the Act and precedent of DPP v. Mirzai Pirbakhshi @ Hadji & Three Others (supra). The defence side had totally declined the question of possessions and knowledge of a witness who intends to register exhibits as is indicated in the precedent of DPP v. Mirzai Pirbakhshi @ Hadji & Three Others (supra). 4 Similarly, the defence side did not cite any other case contrary to the directives resolved in DPP v. Mirzai Pirbakhshi @ Hadji & Three Others (supra). Therefore, their question is briefly answered by PW13. The witness had explained in this court on how he received and attended the intended exhibit Flash Disk. As per directives of the Court of Appeal in the decision DPP v. Mirzai Pirbakhshi @ Hadji & Three Others (supra), PW13 qualifies to tender the intended exhibit Flash Disk from the knowledge aspect of the intended exhibit Flash Disk. On the application of section 246 (2) of the Act, a reply is found in the notice registered by the Republic on 22nd November 2023 in this court and the defence is very well aware of the same, as it was served to them. The notice was preferred under section 289 (1) of the

Act, which was enacted to cure issues which may be complained under the provision of section 246 (2) of the Act. It is fortunate that in the present case, three (3) witnesses had cited the Flash Disk in their previous witness statements recorded by the police authorities in Tarime. The statement were part and parcel of the committal bundle read before the accused at the district court. The Flash Disk was cited by PW9, PW12 and police officer Mponda. In that case the defence side was aware of the Flash Disk. I am aware that there is a complaint on the contents in the Flash 5 Disk. This is unfortunate complaint at this stage of the proceedings. I will reply the complaint together with another grievance on the authenticity of the Flash Disk. In the indicated complaints, any ordinary person would be surprised and ask himself what exactly does the defence is asking. It is surprising for two reasons, namely: first, the Flash Disk was in series of events from the NMB Bank offices to PW13; and second, its science would not allow to be displayed during committal proceedings at the district court. Even if we assume the Flash Disk was available to the defence, its nature in terms of contents, without expert on the subject, would have invited more disputes on authenticity than we currently have in place. I am not a scientist to be able to distinguish the scientific words of Flash Disk and

Flash Drive (USB) Drive). I am also not expert in foreign languages, words and contents in science. However, this is a court of law and justice. It always searches justice to the parties who are approaching it. The words in computer science are one thing and justice-is another altogether. This is what we said today evening in this court in resolving a similar dispute in this case. This is not a court of science. It is a court of law, assisted by scientist to deliver justice. That will only be done, if the intended 6 exhibit is admitted and during reading and explaining on its contents, the distinctions complained by the defence side will be displayed. As of current, this is not a point of law to resist admission of the intended exhibit. Additionally, I cannot be detained to resolve issues of section 23 or 34B (2) of the Evidence Act as they are not related to the instant subject in dispute. This court always cherish the enactment of section 145 (2) of the Evidence Act in searching justice to the parties. I will do the same today in this protest. Having said so, I admit the complained Flash Disk and hereby mark the same as Exhibit P.

7. This Ruling was delivered in open court in the presence of accused, Mr. Elija Thomas Patrick @ Patrice Anthony Patrick and his learned Defence Attorneys, Mr. Otieno Onyango and Mr. Paul Obwana, and in the presence of Mr. Tawabu Yahya Issa and Mr. Davis Katesigwa, learned StategAttorneys for the Republic. r. H. Mtulya Judge 24.11.2023 7