19831212 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: NYALALICJO, NUSTAFA, J.A. AND KISAGA, JA) CRIMINAL APPEAL NO. 28 OF 1982 B E T W E E N LUGATA MWUDTJKI & MAZURI KASOI3I APPELLANTS ) . A N D THE REPUBLIC . . . RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Munyera JJ dated the.2Tth day of May, 1982 JUDGMENT OF THE COURT MUSTAFA. J.A.: The appellants, Lugata Mwubuki and I4azuri Kasobi, together with another prso11, were charged with murder. The two appellats were convicted as charged and the other person was acquitteth The two appellants are appealing. The crucial evidence against the appellants was provided by the extra-judicial statement made by the appellant Lugata.. In that statement Lugata not only confessed himself but implicated. Mazuri as well. However he retracted or repudiated the state- ment, but it was admitted by the High Court after a trialwithin- a-trial. The trial judge held that corroboration was needed and was satisfied that there was sufficient corroboration. I Lugata's statement would amount to a full confession s if believed. The trial judge, rightly in our vIew, believed it. In it he had mentioned inter alia that on the material night he had passed by Madaraka'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 mistakefl P.W04 Matonange testified that on the material night he was sleeping in 1.4 / —2- Madaraka's house and h'heard a voide wh1h he recognised was appeiant Lugo€a's warning the people in the house to remain • in—doors or. they could be killed. The trial judge found that tl2stimonycorroborated Lugata 's retracted confession. Mr. Butambala for Luoata submitted that voice identification is unreliable, but vie thiiikin this case P,W.4's testimony was corroborative of Lugatascdnfession. Wfind ö merit in Lugata's appeal. In regard td peiiant Mazuri prosecution evidence adduced established that he was found with a khange ande child's shirt belonging to P,W,2 Salome which were stolen from her house the night the deceased was killed. P,W,6 conducted a search of Mazurj's house and found a bundle of clothes, from which Selome identified the khanga and shirt. In his judgment the trial judqe stated, am satisfied that the piece of.khanga and the child's shirt belong to Salome (P0J02) and were stolen by the people who killed the deceased0 This corroborates Lugata's confession that the 3rd accused Mazuri was among the killers hired by Kakulilo to kill the deceased Mageni. I agree with the assessors that Mazuri parti- cipated in the killings". It would seem that the trial judge was using Lugata's confession as a basis for convicting Mazuri. We think that is wrong, for Lugaeas confssion implicating Mazuri can be taken into consideration aainst Mazuri, but not as a basis for convicting him, sCe section 33 of the Evidence Act, However, if there is evidence linking Mazuri with the killing, then Lugata's confession can be used as corroboration. Nazuri was found with clothes belonging to POWO2 Salome, and presumably on what is called the doctrine of recent possession the trial judge found that 1Iazui was one of those who stole and killed the •deceased. . ko -3 - The two articles of clothing were found with Mazuri six days after the killing and Mazuri, from that recent possession, could have been a receiver rather than a thief, The trial judge apparently did not den], with the matter in detail and concluded that Mazurj 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 since possession of the stolen clothes did not necessarily link Mazuri with the killing of the deceased, LugaU1 1 8 confession would not be much use as corroborative evidence. 11 We donot think that the charge against Mazuri was proved beyond reasonable doubt. Before we close there is an observation we wish to make about the extra-judicial statement made by Lugata. P,W.5 Pastory who took, down the statement used an interpreter. He said in evidence "The accused spoke.in Kisu1uma and my messenger Revocatus interpreted into Kiswahili, Anyway I am a Msukum and could understand him very well. : ...", Heproduced.the statement. The interpreter RevocatuS.did not give evidence. In general an intcrptor must give evidence stating that he translated what was said, as otherwise the statement would be inadmissible as being hearsay evidence. In this case fortunately P.W.5 himself knew IKisukuma and the statement was therefore admissible0 We do not see why P.W.5 needed the services of an interpreter in the circumstances. An interpreter is only needed when the Justie of the Peace does not know or sufficient1y know the language used by the person making the statement. C,, - -4- We dismiss the appeal of appellant Lugata0 We allow the appeal of appellant Mazuri, quash the conviction and set aside the sentence of death passed on him and order that he be released forthwith unless held in any other lawful connection. DATED at I'IUANZA this 12th day of December, 1983. -' F ii... F. L. NYALJtLI CHIEF JUSTICE -• '1 - A. MUSTAFA JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify that this is a true copy of the original. L. A. A. KYANDO ( SENIOR DEPUTY REGISTRAR I • • ;4 • - , •,' Jj! • - ••;•• i