19790110 TZHC Mbeya

C. ) IN THE HIGH COURT OP ThNZU'1IA AT NBEYA IPPELLATh JURISDICTION CRIMINAL PPNAL NO, 100 OF 1978 (ORIGINILL CRIMINAL CASE NO. 113 OF 1 978 OF TEE DISTRICT COURT OF MBEYA DISTRICT AT IU3EYA) BEFORE: E.P. MTUI ESQ,, DISTRICT MLGISTRS1iTE DICK JOi-Th t oo ... ... ... .. ... ... . . LPPELL.LIDT v e r s u s THE REPTII3LIC •. , • . • • • . • • • • . . . , . . . . RESPONDEUIT CHARGE: Robbery with violence c/s 205 and 265 of the Penal Code S.' JUDG?'IIflNT I S1J-1ATTi, J.,At about 0.00 p.n., on March 10, 1973, three shhoolboys, Charles Tou, Tuntufie Mwaisile and librahsn Lozi, wore on their way to Isanga. They wore on foot. Their journey, had connenced at Uyolo 1osunably they entertained the belief that the law was going to escort thou safely to thuir destinçition. If they so believed., they were 0avuly '.iistakon. When they had reached an area called Sind.e, the trio cane face to face with a r,,Toup of S. . unfriendly young non. One of the. rn was wielding a knife, while anothjr hold a belt which has studs on it. The law was not there to give i:eediato protectich to the scholhoys. One of the nen ,in.the unfriendly oup d.ei:anded Lioncy fron the scheolboys, adding: "This is our job". To deuonstrato to the schoolboys that he ucant every word he had uttered # the nan, who was the one holding the belt, threatened to strike the boys. According to the testinony of all the three boys, the appellant was a nenbur of the unfriendly oup. Charles and Tuntufie used to see hiu at a local uarket before March 18, 1978. After the nan holding the bolt had uttered his threat, the appellant put his hand inside Elharles 1 coat and fished out a wallet containing shs.36/—. He t( - ;Ok the nancy and threw away the euptied wallet - the group's 'job' did not, apparently, include conversion of wallets. Having soon all that, Abrahan and Tuntufie decided that the they had Letter disappear fron the scene to save their pockets, if not their lives. They took to their heels, leaving their friend, Charles, behind. Abandoned by his friends, Charles picked up his ei:pty wallet and dashed tu a nearby house. There he southt help to recover his money. Suveral 1.ersons responded to his appeal. They started chasing the robbers, who ran in vari:us directions. One of the chasers was one Lai:iock Sang'a. As soon as he cane out of his house, he saw two 2.im running away. On e of the men hid himself It -2-- in a maize field. Laneck approached the field but, to his astonishment, the nan was nowhere in the field to be seen. Later, Laneck heard "the $0t*d of a whibtie being blown from Bandal's araG&'. The urae was situatfairly close to the maize field. At the time of the robbery the appellant was dressed in red pair of lone trousers. Amos Mwakifilwa, a watchman at a Lm.ra6e in Mwanjelwa area reported for duty at 0.00 p.m. on the material evening. An unusual scene was awaitini , hiti, He saw the appellant hiding in the aaraie. The appellant was dressed only in a shirt; he had to trousers on. On seein( him, limos shouted: "Who are you? " He got no answer. The appellant took to his heels. Amos chased and caudht him. Answering limos' question, the appellant claimed that he hand been doint to attend a dance when some people chased him and he decided to hide himself in the garage. limoS was not impressed with that eqlanation; the appellant was escorted to a police station. Later, the appellant was char- ed before the district court of Mbeya district with robbery with violence, contrary to s. 285 of the Penal Code. Was there any light (and If there was, what kind of licht) at the scene and time of robbery? Charles tld the district court that the uvenin2 was not very dark. Tuntufie said that the evenind was blessed with nenliht, while librahen said that thcre was no mo.nliht, iiccordin to Abraham, there was a street liht on the scene. Lameck Sana's evidence on the point was that it was dark when he :ot out of his house. That,hasically, was the evidence which was laid in the scale against the appellant in the district court. In his defence the appellant ve evidence but called no witness As his evidence was very short, I propose to quote it in extenso. It reads as follows: "I was c .iin from Isan on that day. I found people shouting. They were near a swollen river. I ran and crossed the river, I ran away from the people and went to hide myself. I thou)ot they wanted to beat (sic). It is not true that I riobed the complainant. The witness saw rio at the police station and said I was the person who robbed the complainants. XXD BY PROSEC: Nil." After he had reviewed some of the evidence before him, the learned naistrate was satisfied that the appellant' guilt had been established beyond a pradventure. He concluded his jud.aent with these words: "On the totality of the evidence and the sincerity and straitforwardness with which the prosecution witnesses Eave evidence hoie in court I coo led to hold that accused's piilt has Loon proved to the required standard under the law of evidence. I find the accused guilty of robbery with violence and I consequently cenvict him of that offence." 7 + VI ,... a7njox .ett.octuoq. jo . pows tour c1 ueos uou 7 uTooT; ON OR jo QUO L{QTL[M tt )1J QZ2C VA avOU oqtrLçEI SOX otitiJ otq OR U.xouct:ep IaUQ 0 aotoi oq. oaojoq poonppt stt& eDUOPTAt) CU OSfltQQQ 'Osto tcctqn000cT eq. uç suto IOU poino aA.tt cq pps UCoct e.ut 'oouepto suRu -a9 I00tro1I sc NOT Otfl. 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Surprisingly, the prosecUtor elected not to cross-exa:dne the appellant. What was the effect of that strange election on the prosecution case? I take it to be settled law that failure to cross-examine :.iay imply acceptance of the truth of the witness' testimony: see R v Hart (1932) 23 Cr. App. Rep. 202; R v Shija s/o IUcina, (1945) 12 E.A.C.A. 64; and William Laurie v Rex (1949) 16 E.ii,C.IL. 144. Judging by the standard of the way the prosecutor elicited evidence from his owa witnesses, it may safely be said, I think, that the prosecutor was not an incompten± one. That being so, it must be presumed, in favour of the appellant, that the prosecutor declined to exercise his right of cross-examination because, at least, after hearing the appellant's story he was no longer persuaded in the truthfulness of the schoolboys' account on the issue of identification. The third factor in the case which caused me some anxiety related to what the learned magistrate recorded in the casefilo just before allowing each of the schoolboys, whom he found to he children of tender years, to give evidence on oath. In the case of Charles, the learned magistrate :erely recorded this: "Witness examined and found able to depose on oath". In the case of Tuntufie, the record reads: "After examining the witness i am satisfied that he is sufficiently intelligent to give evidence and understand the meaning of giving' evidence on oath". The comment relating to Abraham reads as follows: "Witness examined on the v.::ir dire. I am satisfied that he is able to depose and understands the nature of giving evidence on oath". While sup.;orting the learned magistrate's decision in the case, Mr. Mwanyika, counsel for the respondent, drew my attention to the irregularities in the three cm000nts made by the learned magistrate in respect of the schoolboys. Citing Kibangeny iirap Kohl v R 59527 E.A. 92, he subr.iitted that the learned magistrate oug1t to have recorded the investigation he had carried out in respect of each schoulbo Y the results of which made him to decide to allow the boys to give evidence on oath. I think that submission is well - f. .undod. If a convicted accused thinks that the voire dire examination was not properly• or satisfactorily conducted or that the decision of the trial court at the end of th examination was not warranted by the answers given by the intended witness, he may,. on appeal, make that point a subject matter of a ground of appeal. But whether or not there is such a complaint from the appellant, the appellate court has the duty to determine whether the evidence of a 1ers.n of tender years acted upon by the trial court was properly, received. If the the voir dire examination conducted is not ±ocordod, the appellant hay face difficulties in putting forward his cmmpiaint, and the apollate court may he , 0 I -5- placed in a very difficult position because in such a situation it cannot be certain as to what the oxanination consisted of a The interests of justice cicuand that the trial court record a vojro dire exauination when it conducts one. jis it was pointed out in Kibanp;eny's case, thu examination need not be a le.hthy one. Mr. Nwanyika made aa11ant attempt to save the learned uac4Strtes decision, but, with respect, I cannot see any route for escape frm the cunclusion that the learned ma'istrato's decision is n't sustainable. For the reasons I have riven, I allow the nopeal, quash the conviction and set aside the sentence inposod thereon. Unless his persenal liberty is heinz assailed in connection with some other lawful matter; the appellant be set at liberty forthwith. I- U ;j . S•S D,10 SiiNTT JUDGE. Delivered in cuurt this 10th day of January, 1979, in the presence of Mr kunjc-ba, c-.unsel for the appellant, and IJr Mwanyika, counsel for the respondent. B... SitTTI JUDGE.