19900411 TZCA Dar es Salaam9 1

DT ·.ii.J.!! COURT OF APPEAL OF Ti'.lTZ/.NIA AT )21~ :1S .§r'M{(J.f .... ( COR:J.1: . CRIIillTJl., l~PPEi..L HO• 114 OJ? 1989 M.:'.LISELI:TJl E.tJl.TD-T Kl..PD-W.'... • • • • • • J;.PPELL:.NT VER.SUS Till1l i:w.7'011LIC • •• • ••• (:;.pi,eai frora the convtetion of ,tlie Ili.gh COUJ:'·~ of TailZal'lia. a.t Songea) (,Iwiooto 1 J J dated -~ll.e 20th day of June, 1989 in J""tJ.OO?lEFT OF Tl13 COURT- The IIigh CO'U.'t"t sitting 1.t Songea. (ICazimoto, J .) , sente11.cad the appellant ·to S\.ttt~. death consequent UPon his eonviotion. far ·~G murder of his pa·ten1al. uncle, a. ;1an called SEVERINE PEIBO Ia.FTiiGJ... Ee is now appealing from that decision aJ'ld is being represen:~ed before us by IIr. 1..damjee, learned advooa....e. 1 Ur. Xanba., lean'l.ed state J.,t-'i;orney, opposed the appeal on be).w.lf' of the responcle~1.,li Republic. lbe·following facts were not the aubjeet of contention a.i the -'1.rial;. The appellant's father ai.1d thcre:t'ore the deceased 1 s brother was seriously siclc at !:-is home at 11l)i-'i;iiilbi "A11 vil~age ~"1 Songea ·nistl.'"io~ 011 26th Jani.:.ary, 19Q6. 'J:lla/.; cveni1i.g, ::.leepi:ng at tb.e appellant•o father's ho1.1se to tend ·i;ue siok perso1i we~ apart from sooe ladies, tho appella.1t and his two brothers 7:.SIC!.L Kl.PilWl. and :i.1U0~:·IH Kl..Pii:TGJ., tho dece~sed. Se"Vcrin, and a. pers011 2 - called Ul.l~FR2D KOI'.lB!.. w'.10 testified. as P• W. 3 at the trial. J..pparen tly Komba was the appellant I s fa~cher' s -0ousilt. The four men were zleeping in th.e vestibt.ue inside the house.. La;~e at niBflt the deceaccd wa~ fata.lly inj1:l,I'ed i..--ioide ··ib.e house. Ile hc1.d a [sapi11g cu·~ wound 011 the head, some 10 en. long a.1.'ld 3. co deep. The brain matter was comi11g :.> out. .lul the four u1en were arrested and ·the following raornil1g they were collected by the Police. The Republic alleged.that it was the appellalLt who dealt "i:ihe deceased :the fa/cal blow,. The appellant I s two broJlihers were called to tostify for th.e Prosecution. 'lhey tur~ed hostile so the ef'-1ect o~ this was that all their evidence -wc.s discarded as it were, for being utterly worthless. In his sum,uin& u:p tl1e learned trial judge should have told -~!:i,e g<mtle::ien assescors as r:mch and very e.xplici:1~. 1..ccording to·the Sur.~1in@-UP llTotes they were told II 4 ... (ii) ITostile wi -tn( sses P.W.1 and P.W.2 unreliable for prosecation•" • In our view t~is did not go far.enough. L direction like this is capable of rendering the assess11rs unce.r·tci.11 as to the probo.tive value of such tcstioony, as inc~,1ed. it did confuse the third gentler.1a.1.1_ assessor who spent qui to sorae time 011 -'Ghese two wi.fa1esses. The conviction did ~1ot howcver 1 tur..1 on the discarded ovidm1cc. The appellan:t was corwictcd chiefly on the evidence of P.W.3 and P .. w.4, botb. of whoo t~stif:· ed to the appollan~ confessing to -'Ghe be crime. P.W .3 ·who i•~ willLferne;:1bered is the appellant 1 s Tu--iclc, told the court of trial that the appellal1t did say, when they were being escortccl to the court by the Police, the.:'.; he had killed the ....::, - 3 - deceased and that he did so beoause the deceased was a wizard• Aooording to P.W.4 D/Sgt. VEDA8'1US 1 .he recorded a·Caution· Statement by the appellant. This was produced 1n court and tendered as Elxhibi t P.6 with.out• any. objection by. the Defence. Indeed Mr. Mwingira., who was a.dvooa.ting for the appellant, is on reocwd as having said "'chat he had no objectioJ:?. to the Caution Statement being tendered in evidence, even after the. oontents had been read 01.t-P in 00urt. . ' It was only when the appellant was giving hit:'I. evtd.enoe, of course a:f't~r the Proeeoution bad oioeed ti.lei; oa.se, that he made the allegation _tha.t the Police had assaulted him and ,,'threatened him into falsely oonfessi.l"l.g to the ci-ime. It is not easily discernible why, if his story was true,· he ·bad to-go ~ e i - .and eeee-l."'il poei'fiiv&l~ . . i' ' · -that his_ two siblings were not involved in the killing,. Mr. Adamjee has complained that; the trial court erred by not holding a trial w"ithin -t;.ti,a.1 to determine the voluntariness 'I • or ot~ioe of tho Caution Statement.- even at that eleventh hQU.r1 after the appellarrt had teat1f~~~• We are unable to agree with thise It is not -'i:;he procedure to go yo-yo like "'i:;ha.t in tald.ng down- evtdencee The Defence had all the opportunity to raise the allegation of torture and threats at the opportune junoJGI.U:e• ~ey d1d not object to the production of the Caution Statement. ~y cannot now be heard to complain. 1 True in his brief extra.jud.ioia1 statement the ap'pell~t dismmed the Caution Statement but this only by implication and rather ., obliquely. Besides, this ,-ras over eighteen months after he hc1.d made the Caution Sta:temei1t an~ he says that ho knew he was now before a JusJliice .of the Peace. He had earlier on ma.de a ver:, selft,inorimi11at:iJ1g statement, complete with the · .... ..... --· 4 reason for the kill inc. If the stntemG1~i; 1ie.re not voluntary- he would at t!~.is j"Lmc·i;u.re h2.vo told the 'Ju!::i-dce of the Peace the,t he had nacle 211 :L,.voltt.Ttary str.i:'.;onent to the Police. IIe did not. We 2-ro m-:.tircly natisficd th.2.t lw 2.crely m10:;.--:101_-,_sly ccli tcd. .tis s~;;ory e,f·cor his longish so jour:.1 in rc::12.ncl cw:i-~odt.- 1 In the process ho_ 07erlookod th.e fa.ct t2.:.st ·210 hcsd already r,1c1.de an incr:L--:iinating s-~ctc:·:w11t,. Then there is tb.c stato□cnt the appellant 1.s alleged. to P.U.3 who was positive thcii the appellant was neither beaten nor JGb.rcatcncd. I:11 croos-eXcwination P.W.3: was not challcngocl 011 this:: i ·i;here was only the lone question wb.icl1 r:1crcly clici tcd the ro11ly as to w.b.exo prccisoly1 on the wc:,_,y to the c.ourt, tho appollro1t ::12,ele tho c_onfossio1-i - at the Town Hall. It docs 110·~ appoe,!' to us, from ·the drift of P.W,3 1 s e.l1swers, that o.ny qucotiq:1s 1-rero opccificclly put to the wi tnosz tb.2,t were dcsie,nod to rcf'uto the o,llogn:tion ·tb.2/G tho 2,ppollant .:1acle -c~10 coniosoion. We g-loan thnt the appellant rctrac·~ed the Town I1.-ul i, . confession too when ho W.?,13 testifying il1 court. We glean tl:::.at norely, b0c2..uso. it docs not on its own cone out sufficie..11.tly clearly. • •' r Tl..10 appellant bc.,cl_ 02.rlicr on contended: tl"41.t ho had lied in the Cc1utio11 Statcnont a:,:1d then 11 ! continued -iio lie to the Police" ancl '! this c0.:--:1e i::1Dccli,:,;~oly after "I s2-id thn t I told tho Police on the ~ that I b...,d killocl_n • . We &:ivo tho :c1ppelln.nt the bc2-:.ofit of cl.ouM; 1 if you like,- and. :find the,t whc.t he did w4s to rotr;:,.,ct this second ·confession too, 2..s tho trinl :,.1.c1.(;o also fou:.1d, rather than tb.2.1 the appella)J.t ropucliatod it, c:-,a 1Ir. 1:..c.an~oc coatondcd. 'Ihe clisth1ctio11 •• 0 0 ./5 . of histo.r:i.oal interest. The requil'emont that a. retraoted ~r a repudiated confession ha.s-omina.rily- to be corroborated is there. fut of oourae ona oan oonViot on such retrao·iied or :repudiatGd. confession 1dthout o<>.i-.robora-"i;ion. The·milcstone authority for this is the often-- quoted decision in 'lUW.AMOI V. UGANDA, 1967 E,A,, 84. ·For reasons JCazitnoto, J • gave we too _ere satisfied that what "i;he appellant said ' in the Caution Statement was necessarily tl'\.\ee We ,rould oonvic-t ·even . that the..~- · on the-Oeuttoi,. 8ta.toinant alone,. Onoe we hold this, it follows ~at-em~ ~ ' k - ~e, av.l,deno1- d P,Wt!• in o ~ wo~si if. a .repudiated ol> r e t ~ ~ .welted CA is OAQ Mftloh .oa.n be rel\ed 01'\ to oo~o:&;- "beoauee- it m~Gl;e the 1)ili!to'- ~st1 1t Qc1Zl itself oorrob01'ate e, ret.1?a.Oted or l:epud.iated oor,;f,EU:1$-i.PJ) ~hi.ch ~eeds corrol'lOra.tion. 'l1his is --the ~.etW p0si'tion y Sea)lASSAN .BM. WAIJ.mOB'J'.A KIA1.:iIU V.R, ( 1961) E.A. 521. We' 'said so also in GO~ MSUYA .And Otl2ers v.a., o:r. Apps. 29 and 31 of 1988, in which wa restated the vim~s we expressed in HA'J.11:BU G.A:NDIII. alias • CAPT. IIA'ITY MACGBEE And Others, Cr., Appccl..-Jo,.3 of 1986. The Town Ball confession itself was volU11"cc'.ry and unsolicited and il.1 the presei1Ce of the appellai1t•s uncle, albeit the ·appeilant 1s co-accused. We oa.11 only 3UI"mise tl1.'?.t it wao ma.de out of a sense of bravado, · beoause the appellant though."c he had '·done the family a good deed by eliminating a. relative who was .reduoiw their number through. witchcraft; which . brings~ to the ne:x:t issue, killing because ~ of a. belief in w1 tchcra.ft 1 which need_ not detain us here as. the - lean1cd trial judge sufficiently covered it. I -· 6 L d II • I<1IT1L.LI I.J. JUS".2IC]i:: Ol:1 ~·J'rI:11=_. ·,\ this i~\ a true copy of' ·i;he original• I I .