19890719 TZCA Dar es Salaam2

IN THE: COUHT OF APPEAL OF TANZANIA AT DA.K ES SALAAM (CORAM: MAKid''iE, J.-A. , 0 MAR,- J ·A,.,·· And Y!FALILA,_ A~.2."..:~) CRDHNAL APPC:,\L NO. 5 OF 1989 BETHJ-\i"i NGOJL .• G • • e .APPBLLAN'r VERSUS THS REPUBLIC • • • · • • • · .RESPONDENT (Appeal from the conviction of the High Court of Tanzania at songea) (Kazimoto. J. ) dated the 15th day of Novembeb, 1988 in Criminal Sessions Case-No~ 35 of 1987 JUDGMENT OF THE COURT M}"'ALILA, Ag. The appellant Betram Ngoji was convicted of the murder Cf his own son wholly on cirO::umstantial evidence based on suspj_cic;"}s fr4m the circumstancP.s in which thP. deceased died.- We think that the circumstances were so unusuul but so brif:f that it is better to set them out in full. The only -~ye ,•.:i tness Gustav Be tram Ka ping a (P .·v-r .6), the deceased 1' s younJer bi:·o·::h0r, nariiated the events which led to the d~·teased I s de::1.th ::.is folloi,, s: ~On 18.5.86 I was at home at night~ We at~ food at 7 ;.-00 p.m. We were with father, mother r.'lnd dec:foased Ditl1am. None was si~c on thc:1t day., I slept with Ditram in one room. After fo:>d we we're at the kitchen.- The accused went to sleep. Then deceased went to sleep. Th~n he ealled me. He asked for a knife to dig for a herb. I took the knife and gave it to Di tram. Then he slaughtered himself. He ;18lcl the knife with his right hand. He fell dO•iJn., ". This is how young Ditram met his death, and accordinJ to ·i:he ,,_,t,cle family, this was simply a question of Ditram taking hj_s o,m life. But the initial reaot,ion ftf people who arrived at the scene £01101;,ing the family alarm, people like the village chairm,,m Isdo;~ I--'.s.cji, • (P.W.3) who is also the appellant's brother and th~ ih::.}('. SscrE tary Joseph Hagukila (P .W -4) was that the deceased did not :-:::'..11 himself. =- - • 0 0 ••• /2. . -~ ----..~.:. . --; ,,~-- ~--.../ 2 'l,hese suspicions were . confirmed by the Viedical Assistant who performed the post-mortem examination on the deceased~ This was Hassan Rabii Mzee., He was so emphatic in his conalusions that it is better to put down his findings in full. He ~old the trial court: "I examined the deceased and I found on external viP.w I saw a very big cut v,ound on the throat. I also opened thP. skull and found blood clotting at the back of th~ head. I also found two broken bon(-'!S of the skull. Th-: first is .frontal bone and the second is occi,ital bone. I also found blood clots on thR brain. Some of the veins in the brain we~e bleeding. I also found 3 cervical bonP.s wP.re &.it. ·rhP.re were seven cuts in thP. three cervical bones.. In my opinion the death was due to external bl~~ding, internal bleeding, and brain dam-:ige. These cuts on the bones must be used (sic.) by a sharp instrument. To cut th~ throat up to several bon°s needs great force. I agree any cuts caused pain. Yes a person who cuts himself feels pains. In my opinion a person cannot cut himself up to the ~2rvical bones. It is impossibl~ ·· because I have seen many such c~ses. 'rhey never go bP.yond th-~ skin. They would stop and are admitted, treat'"d and discharged. I can S<lY. definitely that deceased did not slaughter himself. He would not ry._~y~gone through all the struc tur_f:,~ of the throat to the bon<=s.. Another hand of a human b(~ing was applied. 11 •. From this evidence the trial court found that the dec~ased did not commit suicid" as alleged by his younqer brother Gustav, but that he was killedR We think an thr Avidence that this finding is corr~ct anct we agree with it. It is impossible to im~gine how the deceased could have inflicted on himself all th~se fatal inJurL=;s found and recorded by th~ doctor., .The doctor was not ask~d, but we do ~dt think th~ fall described by Gust~v could have c,rnsed the hPad injuries which he found on th"-: d·e•~ased, and in thA absence of evidend~ that he was insan~, he c~uld not have inflicted these injuries on himself. V!e also ':lgree that the injury which almost SP.VP.red th'": neck could not have b-2en self inflicted. We are th,,'refore satisfied like the trial court that thP boy Ditram was killed. The next question is who killed him? Up to th•' time the prosecution cl0s,::,c1_ their case at the trial, this quPstion had not been answered not even a suggestion madA by any of th,:-' witnesses as to who killed the deceased.. Indeed the main theory was one of suicide whiw:'1 was disc re di ted by medical evirl.r-"nCA, but no witnP.ss even cast a 3 suspicion on the appPllant apart from the v{aro Sec_retary who said that to him the appellant appeared unrepentant, whatever was meant by that •. , This however contradict0d what othf~r witnesses •bse.tvP.d. Kornel Kapinga (P.W.2) said he found the a~pellant under shock being held by Vincent so that' he and Isidori Ngoji the other brother haJ to make him sit down. Isidori Ngoji_ (P.W.3) said he found the appellant q'.:rying. It was theref~·re only the prosf:?cuting State Attorney who suggested to the court that in the· circumstanc·~s, it is the appellant who killed his son b~e dec•.?ased. After \ examining the ~vidence the learned judge agreed with this view ., and found that th0 following circumstances proved that it is the appellant who killed the,, deceased: First that the deceased was killed in th,': app<:llant' s ,house. s~condly that if the appellant was in his room at the time the deceased was killed or slaughtered himself, then he could not have been th~ first to arrive at the deceased 1 s '\ room, the first on~ would have been his wife (D.W.2) who was in th2 kitchen with the children at the time •. Thirdly that the appellant r0:moved the knife used in the killing from the ~cene and kept it in his room. Fourthly that thr-c appellant orden:?d the dec,>.ased' s room to be locked. Fifthly that the app~llant had blood on his person and cloth0s. Sixthly that the appellant insisted on the immediate b'.lrial of the deceased saying that hf, would be answerable. These circumstances, said the trial judge, are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonabl~ hypothesis than that thP. appellant is the person who inflicted the inJuries and caused the death of the deceased. He therefore convicted him and sentenced him to dea'b:1. The ~ppellant appeal,➔ d and Mr. Jadeja filed on his behalf three grounds of appeal. In the first ground the appeliant cont~nded tha~ the trial court wrongly rejected ••o•o•/4 4 ..... the direct evidence and thE➔ cir,;iumst~i-al evidence tending to show that the death ~,;as caust,d by the deceased himself and that the court should not have n,lied on medical evidence which is not b~rne out by medical jurisprudehae. In the second ground th•c appellant contcmded that then, was no adequate evidc~nce showing that th~~ appellant killed the~ deceas""d• Mr. Jadeja rightly in our view withdrew the ~hird ground of a:c•P·<J_al which sought to chalLmg1, th,,i validity of the death sentence in present-day Tanz~nia. With n-gard to the first ground of app~c1l, and as we have already ~oted, the decP.ased could not have inflicted such injuries on himself. Mr. JadF ja complain0.d th?.t •this 0 view is not supported by medical jurisprudence to which he rightly pointed out no n~ff,n,nce was made in . the trial court. He therefore referred us to the d2cision of the East African Court of Appeal in Sl-L'.\RJJlPAL SINGH -vs. R. (1960) E.i\.. 762 "' to the effect that he could properly raise the point in this Court. We whOle-hoartedly agret, with this view. not qrudgingly as the Court of Appeal of East Africa appears to have done in the above case. In that case Gould J.A. who appears to have been heavily influenced by the opinion of an English High Court judge statHd at page 773 E.G. "These passages illustrete thi, danger of over free use of text books and th~ like, and point their proper .i"unction as assisting thP court t:• a right understcmding of and conclusion upon· the evid~nce given. There is also the opinion of Woodroffe, J., that all passages relied upoh by the defence should be put to the expert witness ~or the pros2cution for his opinion~ In the present case that was not done and the position is cOP.'lplicab-,d by th<::· fact that the passage? relied upon were put forv-1ard for ·the first time on appeal. They may not be evid~nce in the strict sense, being tendered for the purpose of appraisal and understanding of evidence given below but they certainly are akin to ~vidence and we were most reluctant to a~~ede to an application -~hieh appears to offend agoinst the usual rules concerning_ th0 calling of further evidence on appeal. Neverthcoless the Courts of India h.:i.ve apparently so construed th~ sections as to allow of such practice and this being a capital case we f ·.,l t that it was 1 ·~··~-/5. 5 incumbent upon us to consider the passages to .which L counsel referred us.~'. \Ive think that if the purpose of referring to the opinion and views expressed in text books is so as to assist thP. court to a right understanding of and conclusion uport the ~vidence given, then there can be no practical justification for insisting that such r8ferences should only be made in the trial court and that 1>!1ey cannot be raised for th,:, first time on appeal - particularly on a first appeal which virtually is in the nature of a retrial. We al so think there is no valid and practical basis to test the opinion of one expert (tht= text book writer) with the opinion of another expert (the prosecution witness in the box). Such a test cannot be free 'from thf:~ danger of confusion. For whereas the opinions in the text books may be and should 'be objective, those by expert witnesses· in thr. box are not always entirely free from bias in favour of the side which called them. !As it is stated in PHIPSON ON EVIDENCE 10th Ed. at Paragraph 1286 usefully referr3d to us by Mr. Jacteja: "The testimony of experts is often considered to be of slight value, sincr~ they are proverbially, though ·pe;ohaps unwittingly, biased• :j.n favour of the side whioh calls them, as well as overraady to regard harmless facts as confirmation of pre-conceived theories; moreover, support or opposition to given hypotheses can gE:nerally be multipliect at will. IndeP.d where the jury accept th<i mere untested opinion of experts in preference to direct and positive testimony as to facts, a new trial may be grantf"d• The court has accepted th,1 evidence of a wife as to the paternity of~ ten months old child in spite of the ~nanimous 6pinion of several do_ctors."~ The above passage would al50 appear to bear out·Mr. Jadeja 1 s submission that the opinion of experts should not be used to override thc-o available direct evidence on the point. In this case, he said, all the available direct ~vid0nce (P.W.6) point to the fact that the decPas0d committed suicide, but medical opinion was to the effect that this was not possible. In his view the court should hnve accepted the direct evidence given by P~W-6 and rejected the opinion by the medical witness. We aqree that in a situation where c.werythinq is equal, this 1 6 • should be the position, but the factors in the present case are not so uniform. Here all the witnesses, except P.W.6, and all of them are without any form of medical training were clear in the view that the injuries they saw on the deceaserl could not have been self inflictedc This certainly strengthened the opinion of the medical witness, and we think with respec~ that i~ is consistent with medical jurisprudence. We have already noted that in the.absence of evid~nce that the deceased was insane~ he could not have inflicted on himself the extensive head injuries found on him. On this subjec.t TAYLORS PRINCIPLES AND Pl<ACTICE OF' MEDICAL JURISPRUDENCE vol.I has this to say: "Contused wounds are rarely seen in cases of suicirle, because in producing them there is not that probability of causing death speedily which a suicide usuaiiy desires. When _death is ca~sed by acontused wound voluntarily inflicted,· th.e victim is likely 11?,, have been insane.". As to medical opinion on the nature of self inflicted injuries, the same text book gives numerous case examples but two will suffice." In R. v. Cogan, a man was charged with •:1e" murder •f · his wife by cutting her throat. The wound was 8 11 long ... It be71n near the centre of the back of the neck on the right side passed downwards ar.<.i forwards on this side of the neck across the throat to the middle of the left collar bone.- It was a very deep wound, it divided the wind pipe, all the principal arteries of the neck as well as the muscles, and even extended to •;-ie·c'°'rvical vartebr:i.eo I The medical witness woulct not say it WarJL impossible, but he thou'}ht it highly improbable that the wound could have been self inflicted. The man was convicteq. In another related case R. v. Edmunds - a young woman W3S found dead with her throat cut ••••••••••••••• There were three deeply 'incised wounds in the neck marle from left to right, the upper on0. four inches in length commencing below the left ear running parallel to the jaw, the middle cut about seven inches in lP.ngth commencing at the same point and running across the middle of the n0ck to a point behind and below w!:le. right ear and the inner cut, six inches in length, commencing above the middle of the collar b'.>ne and terminatinq in the front of the neck by jdi~ing the middle ........ /7 7 inai sion. The middle cut divided the wind pipe, the gullet and all the grea t vesse 1 .s an d n --a_rves i·n front of the neck to the cervic~l spine. There were two distinct cuts into th(": spinal column about the third cervical vertebra, one penetrating deeply into the upp~r edge of the })one and th•= other a quarter of ~n inch below it, commencihq on the body of the vertebra and running more deeply to the right side. This divid,.=!d the transverse process of the vertebrae, opened th~: joint between it and the bone and severed the vertebral artery. It was held that such wounds could not h~ve been inflicted by the deceased upon herself. - ~ r situation, nature and extent and direction made them plainly h ,micidal. The hacking of the bon2s of the spinal column in two distinct places with such force as to cut off part of thP bone, after both carotid arteries and jugulRr ' veins had been cut through, might be sufficient to justify this opinion, the court concluded. In the result we arc satisfied that the opinion of the m;:~dicJ.l Assistant Hassan Rabii Mzee is consistent with Medical jurisprudence and legal authorities on the point and therefore feel justified in our conclusion that in the cira•1mstances of this case the trial court was right in rejecting the dirr,ct evi_dence to the effect thc1t the d,=c<,~ased committed suicide and holding that the fatal injuri3s were inflicted by the hand of another pensonft With regard to the second ground of appeal, and as alr'":!ady noted, there _ was no direa::. evidence showing that it is the appel:iia.nt V!hO killed the "decea:s.P.d, but Elgain as indicateq the tric,11 judge ·. gave or advanced six circumstances which in his view point to no other conclusion but that it is the appellant who inflicted the fatal injuries on the deceased. But Mr. Jadeja ar9ued with some force that the circumstantial evidenCP on whic~ the appellant was convicted is inferior to th,-= dirc~c:t r:,vidence and that a court should not convict on circumstantial evidence when there is direct evidence to the contrary. Mr. Jadeja, consistent with his usual industry, referred us to the relevant passages on ~✓ILLS ON CIHCUMS'i'ANT~AL EVIDENCE on the nature anci strength of circumstatial evidence. _At page 318 it is stated: ••o•••/8 :i'£his rule (ieP.~ against Suppression or non-production of pP.rtinent d.i ;::-~ct and cogent evi,lence) applies a fC?_f.i:j_'.)_~i. to circumstantial ,-1vidence, a kin<i of evidence which, for reasons which have been already urged is inherently inf~rior to direct t:-!stimony, and ther0forc:: wherever direct evidenc-.) is capable of being adduced, the very att~mpt to substitute a des~ription of evidence not of the same de9ree of force nec:-ess,cirily cn~ab:s a suspicion that it is withheld for improper motives~"~ In this case of course it was not a case 0f withholding any direct evidP.nce, but mt,rely a question of conflict between circumstantial and direct evid~nce. But since circumstantial evidence is essentially a rriatter of inf,~rences and induction, th2 facts upon which they are basert must be solidly proved. ~sit is stated in WilJ.s at p~ge 296: "'rhc facts nlleged as the basis of any legal inference must beJ cl•:J.rly proved and b(~yond reasonable doubt connected with th<~ fnctum goband.um_Q 'i'his rule is an inclisp-ensnble rc'.mctiti0!1 of alJ. sound induction, and its object is, by proper rejHctions nnd exclusior~s and afh~r as many negations as ar~ necessery to verify facts and clear them.from all ambiguity so that they may be~ome the pr~mises of logical argument and r0:-3soning,, 11 ., In t~,e pr~sr]nt case we think there was enough proof of almost all ti'-:c facts on which ti·1,'>. +-..-i::-ial judge inferred the "-ppellant's guilt,- r"amely that th(;_' decea s•.=:d was killed in tihe appelLmt' s home 1 that thr:: Rpp 1.-·1J.ant rr~move,:: thP. knife from tht~ · scnrie, thc1t the: ::1ppellant •.)rc:\ered the dec,.. ,,sc,d I s room to br-, locb•d, that ·the apps::lLmt -: had :uooct on h:Lm and tha·c the r.1ppellant insisted that the deceased should be buried imr1ediatelyo But there w,is no sufficient proof ·:j1at thE-: kitchen w.-:,,s· locab:c~ in the main house anc1. if so how far from the deceased 1 s room in r2l~tion to the appAllarit's room~ 'Ihe quA stion j__s wh8thc!r thl"! factors which were found proved by ·::~1e trial judge a.r-e j_ncornpatible with th,;; innocence of the app8llan t and incapable of explanation upon any other n.::asonable hypothesis than that of his guilt" In other words are these factors capabl2 of being explained on some other basis consistent with the appellant's innocence? For 1 again as it is stab:d in WILLS ON Clf<.CGMSTANTIAL SVIDENCE at page 279: \ • 9 - ''Circumstances of apparently the most unfavourable presumption may be susceptible of an explanation consistent with the prisoner's innO<'>·ence, and really irrelr~vant to the particular inference sought to b~ derived from them, or they m~y be opposed by circumstances which weaken or neutralize or even repel th~ imported presumption and induc2 a strange counter presurnptiono"• The first factor w,c1s that thu deceased was killed in the appe~lant 1 s house. This of cours~ m2ans nothing, becaus8 the -'lppellant was not the only occupant in that household. Not every crime that is committed in a house, is committed by the hous,~hOl:i~ro There must b•~ mo.re than mere ownership of the~ premisE~s to support the inf~~rc:nce of guilt. Secondly the trial judge found that if as appellant's house f s L-shaped with three the evidence shoi.,..rs the , the rooms including the kitchen, and at L time of the incident P.W 6 0 and his mother D.W.2 were in the kitchen, arid if P.vL6 saw deceased cut himself with orn:'l swipe ':lnd he immediately raised an alarm, his mother D.\11.2 would have been the first to arrive at the deceased' s room, but according to her evidence she m2t the appellant at the ctooro But we think that this oonclusion is not n8cessarily correet, becaus~ there was no·sketch plan of the house showing the relative positions of the rooms, which room was near the kitchen, was the kitchen in the main hOuse or outside, This was necGssJry to enable us to say whether in fact D .. W.2 should have bee:::n first to arrive at b!:ie de6eased's room. ThE:: · appellant said that wh,~n he cami:: out of his reom, on h~:nrin; the alarm, he found the d8beased alre::idy dead. Th2 trial judge s:1id that he did not b~lieve him because if he came out withi~ a minute c:s stah:d by P.W.6, he could not have found the deeeat1,~d alr,~ady ,foaj. But we ask ourselves, how long can one live without the spinal chord as the deceas8d was? There is also the consideration that ~ one minute was just an estimation by a 15 year·Old boy w~o had probably never handled a watch. To such a boy, one minute, may just be another way of saying that the appellant came out after a short time. The one minute estimation could not therefore have b,-=cm absolute. The third factor was that the appellant removed the kn'ife from the scene and kept it in his roomo We think- that this action by the appellant is capable Of innocett explan~tion, 10 for j_f the appellpnt had used it 1 he would net keep it in his room; the eviden~e being that he did not hide it, he simply put it on t'he wj_ndow silL Wrc, ·think that th(.; reaction of a guilty man would have been to hide or dispose of the murder w2apon. The four,,-~1 factor was that hG i'..1rdcred the deceased' s room to be locked., We cio not know how this was meant to hide the appellant 1 s criminality 1 for there was no difficulty in having the room opened as the key to tr,e room was with someone else_. However we think the explari.ation(s) offered by the appellant wen,i not unreasonable., The sigh·:~ of t.hr 0 slauqhtered boy must have b~~~n '+ so ghastly that he feared his wi~e, faint 5.£ she saw it., Another w:i.·cne ss said h,: w,a--:rt~ct to prot12ct it from dogs,, The latter reason in our view. may be consistent wi.-th the state of confusion in which the appellant was~ The fifth factor was that the appellcint had bloodstains on his personu The appellant expla:;.ned how he got himself blood-stained; and cons:i.c1..::,ring the fact that he answered the alarm and proceeded to the dececst::,d 1 s room, we see nothing improbable abo~t his explanation~ The r,ixth fac+:or Wn.s '..:hat the appellant insistL=d that th2rG should be im0ediate bu~iel of the deceased and that hA would be answerable,, ·rhis could aL.,o mean the. appellant was.::;:tmp-1y ::,a.y-:1.nq ther~ should be immediate burial of the deceas~d after being satisfied th~t nobody killed him anci that is a father he took full responsibil5. ty for this d<:ecisj_on.. The state of the corpse could have been a major factor i~ influencing the appellant. Apart from the f.=.ict as wt~ have tried to demostrab~ thc:1t these circumstances or fact0rs an'! cap~ble of bearing the above innocent ,~xplanations 7 we th:i.nk thb..~c 2.s an additional difficulty in readily imputing guilt to the app,;lLrnt, and this is the abs.:mc,a of motiveo In the book c:U.:,~d t0 u.s by Mr~ Jact,2ja 'AILLS ON CIRCUM::iTANTIAL EVI 1)SNCE; it is s'catr'"d at paqe 276: "The prirna facie prest..mption in favour of. innocence from the abs~nca of all appnr~nt mot:Lve j_s 9r:··atJ.y sb~2"10th,➔ n,,.,d whe.r-e all inducement i i i t:·1':-! commission of :-.hc:--! imputed c.·::1.me ;'..s opposec~ by strong counteracting 11 . motive as where •••••••••.•••••••• or where a party ( o s . in th is· c ~ ~e j: : ~ccu sed of murder had a direct interest in the continuance of the life of th~ party supposed to have been murdered.·" b In this case not only is _there no motive or reasons for the appellant to have decided to so brutally slaughter his own son, but in the normal course of things the appellant had a direct interest in the·deceased 1 s continue0 life. It is true that lack of motive is not important in a case where the rest of the circumstances point to no other concld;ion. But this is not always so particularly in casP.s where the accused is charged with the killing of a close family member such as a wife, husbanj or child. The absence of motive in such cases shoulJ lead to a strong prem1mption of innocence. · In thP result we agree with _Mr. JadP.ja that there was no evidence showing that the appellant killed the deceased who was his own son. Accordingly we allow the appeal~ quash the conviction for murder an of death. If he is not otherwise . , . er his immediate rr~lease from . ,' ,, ·, ;.'; . . . . ( Jj~•..'R::~s SALAAM'.?tt is 19th day Of July, 1989. :r;r ~:. ~-if " ,~·it O:r, : L. M. Mi\KA.r,:£ JUSTICE Op APPEAL JUSTICE Op APPEAL L. M. MFALILA Ag. JU.STICE OF APPE1\L •. ( J. H. MSOFFE ) SE!HOi< DEPUTY REGISTRi\R.