Baraka Papaa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 406 OF 2024 (Arising from Criminal Case No 39 of2022 of the District Court of Simanjiro at Orkesumet) BARAKA PAPAA PANIA.................................................................... APPELLANT VERSUS REPUBLIC.......................................................................................... RESPONDENT JUDGMENT 14h March and 3fd May, 2024 MIRINDO, J.: On 4/11/2022 wildlife officers were patrolling a reserved area between Naberera and Marakao Villages in Simanjiro District and saw a motorcycle at Silale area carrying two passengers who were sitting on a "package". When they got off the vehicle, the motor vehicle changed direction and drove towards the forest. The driver and his passengers got off the motorcycle and ran away. The officers managed to arrest a person who was on the motorcycle who turned out to be the appellant, Baraka Papaa Pania. They returned him where they had left the motor cycle and asked him what was in the package. He told 1 them that it was animal meat and he was the driver of the motor cycle. Inside the package, they found a head, skin, meat and tail of a wild animal of an eland. These items were seized and recorded in the certificate of seizure, and handed over an exhibit keeper, a police officer known as PC Sweetbert at Orkesumet Police Station who then handed the items to a wildlife officer Anthony Peria for trophy valuation. Equally seized by wildlife officers was the motorcycle with registration Number MC 790 CVD which was handed over to Pc Sweetbert Before Simanjiro District Court, Baraka Papaa Pania was charged with the offence of unlawful possession of government trophy contrary to section 86 (1) and (2) (iii) of the Wildlife Conservation Act [Cap 283 RE 2022] read together with Paragraph 14 of the First Schedule to the Economic and Organised Crime Control Act [Cap 200 RE 2022] and section 54 of the latter Act. The prosecution produced, Meshack Hamis, a conservation ranger, out of several eyewitnesses to the crime scene. He was the one who recorded the certificate of seizure and submitted it along with the motor cycle to exhibit keeper at Orkesumet Police Station. The second prosecution witness was PC Sweetbert, the exhibit keeper who confirmed receiving the exhibits from Meshack Hamis and produced them at the trial court along with the chain of custody forms. Anthony Peria, a trophy valuer testified as the third prosecution witness that he valued the wild animal to 2 3,910,000/= based on the information from the website of the Bank of Tanzania. Even though the trial court admitted the trophy certificate, the information about valuation was insufficient as the witness should have provided additional details to the Court. In his defence, Baraka Papaa Pania admitted that on the day of his arrest he was driving a motorcycle along Silale area when he met six wildlife officers. They enquired about his and poachers' whereabouts. When he denied not knowing about the poachers, he was beaten and put into a vehicle along with his motorcycle. He was taken to Orkesumet Police Station. The trial court held that the case was proved beyond reasonable doubt. It convicted the appellant of unlawful possession of government trophy and sentenced him to twenty years' imprisonment, and ordered the motor cycle to be forfeited to the Government. From his conviction and sentence, Baraka Papaa Pania has appealed to this Court on seven grounds. At the hearing of the appeal, he appeared in person. The respondent Republic was represented by Ms Grace Christopher and Benadetha Mosha, learned State Attorneys who opposed the appeal. The appellant had nothing to add to his grounds of appeal and left it to the Court to decide. 3 The fate of this appeal rests on the first, second, third and sixth grounds of appeal. On the first and second grounds of appeal, the appellant complains that the prosecution did not call all the material witnesses. Not all wildlife officers who witnessed the incident were called; the exhibit keeper and the trophy valuer gave hearsay evidence as they were not eye witnesses. For both reasons, the prosecution case was not proved beyond reasonable doubt. Ms Grace Christopher, learned State Attorney argued that the prosecution has discretion to call witnesses and the first prosecution witness gave sufficient evidence that the appellant was caught with government trophy. Proof does not depend on the number of witnesses and in any case, as was held in Hamis Juma v R (Criminal Appeal No. 63 of 2020) [2023] TZCA 11 (14 February 2023) the accused does not assume the responsibility of a prosecutor. The learned State Attorney contended that the second prosecution witness was an exhibit keeper who testified about the chain custody and the third prosecution witness testified about valuation of trophy. She concluded that both witnesses gave direct and not hearsay evidence. Two issues of evidence arise from the first and second grounds of appeal. First, during the admission of the motorcycle from the first prosecution witness, the appellant stated that the motorcycle belonged to him but disclaimed its seat cover. The prosecution ignored this fact by declining re-examination of its first 4 prosecution witness and the trial court admitted the motorcycle. Secondly, when the two chain of custody forms were being admitted, the appellant stated that he had no objection but when their contents were read over to him, he stated that "I do not know who was found in possession of the wildlife animal meat." The simple fact that the accused does not object to the admissibility of a particular piece of evidence does not imply its truthfulness. In several cases, the Court of Appeal has held in relation to confessional statements that the trial court must weigh uncontested confessional statement and should not rely on their face value. Although a cautioned statement was admitted without objection in Morris Agunga and Two others v R [2003] TLR 449 at 452 but it was retracted and repudiated at the defence, stage, the Court of Appeal held that it was still the duty of the trial court to determine its voluntariness: The trial judge did not consider the appellant's defence to decide if in the light of it the appellant's confession was really voluntary. He had the duty to do so, and if he found that the alleged confession was not voluntary he should [have] discarded] it altogether notwithstanding that its admissibility in evidence had not been objected to. We now have to make good the omission by the trial judge... However, it is a 2004 decision in Steven s/o Jason and 2 others v R, Criminal Appeal 79 of 1999 where the Court of Appeal detailed the duty of the trial court to weigh the evidence of a cautioned statement notwithstanding its admission without objection. In this case, appellants retracted cautioned statements after 5 the closure of the prosecution case on the grounds that they were made under torture, their counsel did not object to the statements being tendered in court as evidence. As a result, the trial judge held that the voluntariness of the statements was not in question because of the failure of the defence to object to the admission of the statements and held that the cautioned statements were voluntary and true. The Court of Appeal held that, although the admissibility of the cautioned statement could not be challenged after the closure of the prosecution case, it was incumbent upon the trial judge to consider the weight to be attached to those statements and, if need be, disregard the cautioned statements: ... [I]t appears to us that the learned judge took the view that once the defence had not objected to the admission of the caution statement (Exh P 4), no further complaint of dissatisfaction against the statement should be entertained. With respect, we cannot agree with this view. In our opinion, what the defence was seeking to establish at the stage reached at the trial was that in the light of the evidence that torture had been involved, the caution statement should not be relied upon in convicting the first appellant. In the light of the fact that the first appellant had sustained injuries which he alleged were caused by the police, there was sufficient basis for the judge to attach little weight at all to the caution statement (Exh P 4). The fact that the admission of the statement was not objected to by the defence does not in our view, preclude the trial court from addressing its mind on the evidence (Exh P 4) closely when analysing it. In between these two cases, it was held Twaha s/o Ali and 5 others v R, Criminal Appeal 78 of 2008 that a trial court has an obligation to inform 6 unrepresented accused person of their right to challenge the confession when it is about to be admitted on evidence. In this appeal, the accused was unrepresented at the trial, apparently objected to the admissibility of the motor cycle and the chain of custody. Although not consistent with the procedure for challenging the admissibility of evidence, the trial court was duty-bound to assess the weight to be attached to the evidence of motor cycle and the chain of custody. I am satisfied that the appellant denied being found in possession of the eland meat, and the question is whether this fact was proved beyond reasonable doubt. It is clear from the evidence of both sides that on the day of his arrest the appellant was driving a motor cycle along the Silale area. The prosecution evidence is that the appellant was carrying two passengers whom they were unable to identify and arrest. The prosecution stated that the passengers were sitting on a package at the time they saw them. There is no description of the package that was in the motorcycle seat. Prior to establishing that the package contained animal meat, there should have been sufficient details about the package in the motor cycle and its location on the motorcycle seat. Specifically, evidence of description of the suspected 7 package, of the wildlife officer who picked it up, of the condition of motorcycle seat where the bag was located, should have formed part of the prosecution evidence. The fact that the appellant, upon his arrested, admitted that he was carrying animal meat was not enough. There are no details of the admission and how it was made. Even if it were made, there are other issues to be considered. First under section 26 of the Evidence Act [Cap 6 RE 2022] admission is not conclusive evidence. As was stated in Rao K (2009), Sir John Woodroffe and Syed Amir's Law of Evidence, 18th edn, Vol 1, Nagpure: Lexis Nexis Butterworths Wadwa, at page 1332: ...Admissions are substantive evidence by themselves...though they are not conclusive proof of the matters admitted....An admission is not conclusive as to truth of the matter stated therein. It is only a piece of evidence, the weight to be attached to it must depend on the circumstances under which it is admissible.... The weight of an admission depends on the circumstances under which it was made. In the present appeal, the admission was made before a group of unnamed wildlife officers who are arrested him. In Ausi Mamu v R, Criminal Appeal 232 of 2004 and Inota Gishi v R, Criminal Appeal 5 of 2008, Court of Appeal of Tanzania at Tabora (2010) (unreported), the Court of Appeal held that a confession made before a group of village leaders and sungusungu respectively is involuntary. This principle equally applies to an admission made before a group 8 of wildlife officers and I hold that the appellant's admission, if it was ever made, was involuntary. Thirdly, the admission was supposedly oral as the prosecution merely stated that the appellant admitted carrying animal meat on the motor cycle. In Ndalahwa Shilanga and Another v R, Criminal Appeal 7 of 2008 it was held that oral admissions and confessions should be admitted with extreme care. The justification for being careful in dealing with oral admissions were stated in the Taylor, Evidence, s 861 as cited in Rao K (2009), Sir John Woodroffe and Syed Amir's Law of Evidence, 18th edn, Vol 1, Nagpur: Lexis Nexis Butterworths Wadwa, at page 1333: Evidence of oral admissions ought, however, always to be received with great caution. Such evidence is necessarily subject to much imperfection and mistake; for either the party himself may have been misinformed, or he may not have clearly expressed his meaning, or the witness may have misunderstood him, or may purposely misquote the expression used. It also sometimes happens that witness, by unintentionally altering a few words, will give an effect to the statement completely at variance with what the party actually said. In the present appeal, there is no account of the oral admission. The oral admission was made before a group of wildlife officers and it is not known to whom exactly it was made. 9 On account of these doubtful features in the prosecution case, I hold that the prosecution withheld some material witnesses. I draw an adverse inference against the prosecution, and hold that there was no proof that the motorcycle seat carried the package. In the third ground of appeal, the appellant argued that the certificate of seizure was involuntarily signed and the first prosecution witness did not explain to him the contents of the certificate before he signed it. The learned State Attorney, Ms Grace Christopher, argued that it was not true that the certificate of seizure was involuntarily signed as the appellant did not object to its admission at the trial. She added that the circumstances of this case did not allow for calling of an independent witness. The first prosecution witness testified that he signed the seizure certificate along with his colleagues and the appellant. The only person who signed as a witness is one Daniel Michael but he was not called as a witness. There is no reason why an independent witness could not be procured given that the appellant was arrested at eleven in the morning. It is surprising that the wildlife officers arranged for another vehicle after the one they had broken down but did not consider it necessary to allow the appellant to have an independent witness. In a situation where there was no independent witness, it was incumbent for Daniel Michael to testify. Under this situation, this Court is entitled to draw 10 adverse inference against the prosecution case. These facts suggest a possible defence that the certificate of seizure was not voluntarily signed. A court is entitled to draw an adverse inference against the prosecution where there is great likelihood that the evidence of the material witness who were not called would have bolstered defence case. In a situation where the accused was arrested by a group of wildlife officers but only one of them testified and the prosecution choose not to produce the accused cautioned statement, it is dangerous to reject the accused's plea of involuntariness at the defence stage. Under these conditions, the accused is entitled to benefit of doubt for two reasons. First, the cautioned statement which had not been tendered in court may consist allegations supporting the plea of involuntariness which cannot be dealt with by the trial court. The second reason is that the wildlife officer who testified may not have been the one who threatened or tortured the accused person and so the accused could not raise the plea of involuntariness during the prosecution case. One might consider this to be a mere conjecture but as the burden of proof rests with the prosecution, the defence is not barred from relying on conjecture. In MW 306879 Athumani Bakari Kijazi v R, Criminal Appeal 30 of 1989, the High Court rejected the defence version of facts in a charge of murder for being mere speculation. In its judgment delivered by Mfalila JA, the 11 Court of Appeal held that the defence is not precluded from relying on conjecture: We think with respect that it is only the prosecution which is prohibited from basing its case on surmise and conjecture. The defence, by the very naturee of the rules governing burden of proof in criminal trials, is allowed to surmise and conjecture in support of its case.... This principle is also evident in Kato Paulo v R, Criminal Appeal 272 of 2008 where the Court of Appeal held that the accused's defence cannot be rejected simply because it is not supported by independent evidence. For these reasons, the appeal is allowed. I quash the conviction of Baraka Papaa Pania, set aside his sentence of imprisonment with an order that he be immediately released from prison unless held for any other lawful purpose. In light of the provisions of section 17 (1) of the Proceeds of Crime Act [Cap 256 RE 2019] and the Court of Appeal decision in EX F 7153 D/C Dickson Muganyizi v R, Consolidated Criminal Appeals 261 and 264 of 2013, I quash the forfeiture order in relation to the motor cycle with registration number MC 790 CVD. It is ordered that the the motor cylce be restored to the appellant unless the Director of Public Prosecutions deems it appropriate to make an application to court within fourteen days section 17 (2) of the Proceeds of Crime Act. DATED at BABATI this 27th day of April 2024 12 F.M. MIRINDO JUDGE Court: Judgment delivered this 3rd day of May, 2024 in the presence of the appellant in person and Ms Benadetha Mosha, State Attorney for the Respondent. B/C: William Makori present. Right of appeal explained. F.M. MIRINDO JUDGE 3/5/2024 13