19831212 TZCA Dar es Salaam2

~ f't•II.-·.,,-., ·I ... ./ IN THE COURT OF APPEAL OF Ti\NZANIA AT MWANZA (CORAM: NYAL~\.~-~k,,f.J., MUSTAFA, J.A. AND KI.3ANGA, J.A.) CRIMINAL APPEAL NO. 28 OF 1982 BETWEEN LUGATA MWUDUKI eocooaooo~'OO MAZURI KASODI A N D THE REPUBLIC oc•oooo o o a t. o RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Munyera, Ja) _dated the 2Jth _2ay of \l!ay, -:L'82 .. JUDGMENT OF THE COURT MUSTAFA 2 J .A._J The appellants, Lugata Mwubuki and Mazuri Kasobi, together with another person, were charged with murder. The two appellants were convicted as charged and the other person was acquitted. The two appellants are appealing. The crucial evidence against the appellants was provided by the extra-judicial statement made by the appellant Lugat3. .. In that statement Lugata not only confessed himself but implicated • Mazuri as well. However he retracted or repudiated the state- ment, but it 11as ad.mi tted by the High Court after a tria1 . .,.v1i thin- a-trial. The triul jud9e held that corroboration was need•2d and was satisfied that there was sufficient corroboration. Lugata's statement would amount to a full co:1fession 9 if believed. Th,::: -trial judge, rightly in our view, believed i t .. In it he had r:1entioned inter alia that on the material night he had passed by Madaraka I s house in the village and warned the occupants therein not to come out if they heard noises, as otherwise they could be killed by mistake. P.W.4 Matonange testified that on the material night he was sleeping in 'f , 2 Madaraka' s hou~.c an.d he heard a voice which he recognised 'Was app8llc1nt Lugata's warning the people in the house to remain in-doors or they could be killed. The trial judge found that PoWo 4 1 s b~stimo,1y corroborated Luga ta' s retracted conf0ssion. Mr. Butambala for Lu~;ata submitted that voice identification is unreliable, but we think in this case P.Wo4's testimony was corroborative of Lugata's confession. We find no me~it in Lugata's appeal. In regu.rc.1 to appellant Mazuri prosecution evidence adduced cstabli:3hcd that he was found with a khanga and a child's shirt belonging to P.W.2 Salome which were stolen from her house the night the deceased was killed. conducted c1 seo.rch of Mazuri' s house and found a bundle of clothes, froM which Salome identified the khanga and shirt. In his judgment .the trial judge stated, "I am satisfied that the piece of khanga and the child's shirt belong to Salome (P.W.2) and were stolen by the people who killed the deceased. This corroborates Luga ta' s conf~ssion that the 3rd. accused I'iazuri was among the killers hired by Kakulilo to kill the deceased Mageni. I agree ~ith the assessors that Mazuri parti- cipated in the killing ■ "o It would seem that the trial judge was using Lugata's confession as a lxisis for convicting Mazuri. We think that is wrong, for Lugo.ta's confession implicating Mazuri can be taken · into considero.tion against Mazuri, but not as a basis for convicting him, see section 33 of the Evidence Act. However, if ther,; is 0-vidence: linking Mazuri with the killing, then Lugata's con:fession can be used as corroborationo Mazuri J was found with clothes belonging to P.Wo2 Salome, and presumably on what :is called ··the doctrine of recent possession th0 trinl judge found that M?-zuri was one of those . who stole und ldlL,d the deceased • . .,i. I - r 3 The two 2rticles of clothing were found with Mazuri six days after the killing and Mazuri·, from that r ecen t possession, · could hava bcGn u receiver rather than a thief. The trial judge apparently d_id not deul with the matter in detail and concluded that Mazuri was one of the thieves. If Mazuri was a receiver '--- then he would not be one of those who stole and killed the deceased., And.sin(;:p'possession of the stolen clothes did not • necessarily link Mazuri with the killing of the decErased, Luga ta' s confession would not be much use as corroborative evidence. ,' We do not thinlc that the charge against Mazuri was proved b"-]yond reasonable doubto Before we close there is an observation we wish to make about the extra-juc.iicial s-t:.atemen t made by Lugata. P. W. 5 Pas.tory who took dovm the statement used an interpreter. He said in evidence "The accused spoke_ip Kisukumq and my messenger Revocatus interpreted into Kiswahili.. Anyway I am a Mqukuma and could understa,1cl _him _very well. • ~-•". He . pro,ctuced :the statement. The interpreter Revocatus _did .. not give evidence. In general an intcrptcr must_. give evidence stating -t;:hat he Itranslated what \vas said, as otherwise the statement would be inadmissible as being hearsay evidence. In this case fortunately . P.W. 5 hirriself knew Kisukuma and the statement was .therefore ·admissible. . We do not aee :why P.W.5 needed the services of an. interpr~ter in ·):he circumstances. An interpreter is only needed when the Justic':e1~. of the Peace does not know or sufficiently lmow the _language usetj by the person making the. statement. ...,_ 4 We dismiss the appeal of ::1ppellant Lugata. We allow the appeal of appellant Mazuri, quash the conviction ahd set asid,~ the sentence of death passed on him and order that he be reieased forthwith unless held in any other lawful connection·. DATED at M\JANZA this 12th day of December, 1983 • \ . \ 'F. L. NYJ\Li\LI ~HIEF' JUSTICE il. MUSThFA JUSTICE OF APPEAL R.H. KISJ..NGA JUSTICE OF APPEAL I certify/that this is: a 'true copy of the original. /. SENIOR DEPUTY REGISTRAR