mgaza another vs republic 1995 tzhc 7 19 june 1995

HIGH COURJ2 CRIHINAL'APPEALNO;220 1994 -2 Original Criminal Case Uo.469 of 1:393 of the DiBtrict Court of I1a1a Distric~ A~ Kivukoni Before Kipilimba, Bsg. DisliricG l'I8gistrate 1. 1. JUMA MGAZA 2. KULWA NJAKO·· . . .:~. '. I ,.. -,-;\?~MATUI, ~.'. ',-, PRM, EXT. JUR • ,*<'".l .• ,·~Yf·\{::(";'~~. Nine accused persons appeared before l1he Ilala District Court '\'::1ii~liing at Kivukoni. :rhey were Ci 11 charged vdGh the serious offe~ce of robberv wi~h vi91encec/s 285 ana 286 of the Penal Code. A~_ the end of the trial the firsG, the third and the fourth , accused were convic-Ged. :£11efirst andGhe third accused were sent.enced to Ghe minimum term of15 years imprisonment. T.p.efourth It accused who was found -GO be a minor was sel1lienced OliO suffer ten 's1i'rokes of the cane. The others were clcqui-.;r;ed. Being aggrieved by ~hat sentence ~he first and ~he third accused, now the appellants bave appealed to ,this Couri against both conviction and senGence. :ehe evidence which was laid on 'i.he scales of Jusliice which the basis of the trial courli t s decisiop nw,r be summarised, as follows: For the sake of convinience c:mu claricy I shall refer to the accused persons as :lihey appeared beforstille trial court, Juma Mgaza" the first appellan'lj, as the :firsu accused, Abdallah Salum as second accused, Kulwa Njalco, the second appellan1i, as the third accused, Hiari Saidi as four-eh accusE:d, Edward John as c,fifth accused, Yusuph WillieGl as slxGh accused, iwaha Juma as seven,lih accuseci, Ramadhani Juma as ei th i3C.CllSGC ,Jnd r10hamed Juma 'I' as the nineth accused. Tito Taimu (l''v\T1) and Hamisi :raimu (1'\'1,2), street hawkers ~ho used to sell<vitenge to cu~tom~rs ihey meet ih the streets, had a nasty experience on the 17th July, 1993. They were wooking for possible custome~s in one of the narrow streets of Manzese • ..;...•. tua"G was around· 1,.00 pm. SUdllenly thev were atuacked by a gang of robbers who threw bricks at GhetJ i'Jnd before the witnesses could realize whall was happening PW2 foune; himself bleeding on ~he face and bo~h of ~hem were ernp~v handed. Their assailan~s ~ook from ~hem their fourteen pieces of pairs of vi~enge they were selling and hard cash about shs.14,OOO/=. No body was around ~o assis-lj-Ghem and Tlbe alnrmthev raised to call for help from good samari~ans bore no fruits. ffiatGerwasthen repor~ed 10 ~he police. As a result of that reporG eleven suspects were rounded up,Ghe nine <;lccusedpersons inclusive. According,~o PWl and PW2Ghe fouruh accused \'1/'38 8 :L[;tuiliar face to Chern even before ~hat incidence While the Oljhel~Scould be iden-tiified facially. Ort the -,20'iJh Pebruut'~t,1-993 aU around 8 •• OOc a.m. 'an iden~ification ~aradewas conducGed 81 Magomeni police station, at tha~ parade PWl, purpor~ed ~o have identiiiiedGhe first accused, the 'lihird aocllsed and the four~h accused, while P\'2 .gllegedG 0 have iden~ified ~heJfirs~ accused, the second accusea aUG utl6 fourth accused. ,Finally the nine accused founa Ghe charge placed a~ their door S1Ieps. In T.heir defence all the nine [wcuseu protested their innocence and main'Gained -l.ihatGheRepublic's finger had wrongly ·poin1ed a~iihem as robbers. 1:11e\7 were wrongly iden~ified. \'Ihile finding the res~ no~ guil~y of the offence, the ~rial court disbelieved wha~ever t~e firG~, the thira and the four~h accused had said and proceeded -GO deal wi 'ch tllerll inGhe manner above described. According 110 their memorandum of appeal the decision of 1J.he urisl courli is criticized on two grounds namely: (a) That the learhed ~rial magistrate erred in finding that ~he identification of ~he ~wo appellants was proved to the s~andard required in Criminal ~riala. (b) That the learned trial magistrate erred in law in his finding that the identification parade was properly conducted and \ha~ the appellan~$ were correctly iden-Gified by lI.hecomplairwlH ~ .The appellanlis who appear,ed persorwlly GO argue 'liheirappeals opted "GO adop~ the conten~s of Gheir memorandum of appeal. Mr. Mwongela (S .•.A.) appeared for the Repu·blic. In his address ~o ~he cour-lj"Ghe le2rned ~)"ti3~e A~'GOrney suppor~ed ~he convictions and the resultGnt sentences. According ,~ohim the decision of "che ~rial cour"G was properly suppor~ed :. by lihe evidence laid on the scales of j US"Clee. He. argued that since the offence was cammi tted duringGhe dav, "chere was no difficul-t:;y of tlre complainants iden"tifying Gheit assailan"ts. May I star"t off by saving th~"t whenever a trial court, desireousGo go very carefully through -lihe correct pa"th of justice, has to decidetche fa1ieof an ..accused before him, Ghe right test is "to ask i"tsslf whe"ther ~he evidence laid on Ghe scales of jusliice unequivoc;lly prpn6~Hces "the accu~ed's guil1i or nOb arid whe"ther -lihe scales unfavourablVGilt against the accused. If the answer be in the posi'Give TihenGhe iJrialcour1J can, very cOmfortably, proceed to conviclithe accused, but; should there be any doubli nagging i liS' wise mind as GOGhe par't/icipa-Ciion of lihe 'accused in~X1e offence, then if such doubG be reasonable, it ought -;7\!;\J,\:'" to be resolved in favour 01 the accused who should be entitled to an acqui lital. I"t is lIhe solemn dlH\1 o'f -Cihetrial court to evaluate, very carefully, every bi -G and piece of evid ence for and agaiilst ehe accused and rule ou"t anvthingGhat eXQulpa"tes him. before a decision co convict is arrived ~H. The evidence must ,. irrestablypoinli at the accused person as one of "the partioipanlis in the eSliablished orime. The convictions of the two appellun"ts in lihis appeal hinge on lihe idenliifica-Gion of the persons who robbed P'JU and PW2, The trial cour G, 8S well as the learned 8 Ga-ti e .AIitorney were of lihe view thaliGhe ~den"tificaliion wa~ sufficient to ar~ive at a safe oonviction of "the appellants. After going carefully through -t' lihe evidence ofCihe said idenGifica"tion and after looking at the law appliCable in such siliuation I am compelled noG to share ~heir views, I do liha-Ciwith respecli of course, and the following are my reasons. , , Where a Grial court is to act on evidence of identification to convict an accused, i-G mUSGfirst be satisfied 'tihat such idenliification is watertigh"c and le1:wes no room for any conjecture other thanGhe guilt of the accused person. rllis warning has been sounded bv both,Ghe crolJrt of APpeal Emd bv this Courli on diverse ocasio us • In "the case of 1,{aziri ;\mani v Rep LT98Q7 TLR 250, paradoxically relied bv tiLe l{epublic in support of the conviction, lihe Court of Appeal warned: "The first poin-Ii we wish to make is an elementary one and ~his is "that evidence of visual identification, as Courts of East Africa and England have warned in a number of cases is of the weakest kind and most unreliable. It follows ~herefore, no cour~ should .... act on evidence of visual identification unless all posibili~ies of mfstaRehidentity are eliminated and dIe Qoure Is fully satisfied thaG the evidence before it is obs6luliely waG srt it3ht •" . II (Emphasis supplied) Both the Court of APpeal and this QOUrt huve given g~idelines to be followed by a -Grisl cour-G facing a pro~ol.eth of whether to convict or not, acting solely on evidence of visual identification. In 'Ghe case of l-1ohamedAlhui v Rex [194§ EACA 72 quoted witll approval in 1;he case of Joseph Shagembe vR •.[f9S,g?' TLR 147, the Court said: "In everv case which there is question as to the identity of the accused the fact of there being a description given and the terms of that description are matters of highest importance of which evidepce ought always be given, first of all of course, bv Ghe person or persons who, gave the description and purport to ~dentifv the accused, and 1;hen bv Ghe person or persons "to whom the descriptions were :nade." Againint;he " case of Augustino Keute v Rep. [iOS,gl TLR 122 a similar warning was resounded when it was said: "11i is unsafe to support the conviction of an accused where the eye witnesses' identification is n01i accompanied wi-lihdetails. '! M..v careful evaluation of the evidence la.ieion the scales of jusGice, has not persuaded me \ihatiGhe EilJpellan\iswere properly identified. According to PWl and PW2 their assailan1is 1iook them by surprise, i1i was a sudden attack. Much as it w~s day 1iime one does not ge1i easily convinced GIlaG in a situ3tion of a sudden at'l.i8ck by a gang of robbers the victim of such a robbery can have time iO concetra1ie on identifying lihe a1it8cker rather than to save his dear life. It is my settled view thaG evidence of identifica1iion in such situation should have been cau1iiously evaluated. The 1irial courli was dUiiV boundlJo ask the wi1inesses what made them iden~ifv 1ihe appellan~s, rhe identification was required to be nccompanied with details. Apar1i from saying ~hat the appellan1is were iden~ified facial~y no details ~ere ' given2¥-8r 1ihat reason, I do not hesi14ate 140 sa11 -Ghat the , idenGification was veh ins.u.f.f.icient and that 11i was quite unsafeijQ aC"G on i.'G and co.q.vic~ ~ ..~~~"lla!H'E;j•. Xhere is evidence ~h8~ the appellants were picked up from an identification.perade~ If that were Bo then one could perhaps say that thali had salvalged lillt; siliu3tion and strengthened the said evidence of identifica lii(m Qiche '~PPGllants. My careful examination of "he evidence on hovy the 8(:i0. ViIJde was conduclied leaves me with some doubt aata wh8~her ~hs appellants were properly picked up. Why do I say so? I shall give my reasons. The case of R. v T1wango slo Maua (1938) 3 EACA 29 lavs down lihe procedure ~o be followed in conducting an identification parade. It is us follows: 1. The accused person should always be informed that he may have an advocate or rela~ivc at the time of conducting ~heparade. 2. The officer incharge of -ehs C8 se ,~lGl10ugh he may be presen~ should notcarrv OUG Gh0 parade. 3. The wi~nesses should noesee thEscoused ~efore the parade, 4. The accused should be placed am0rtg aG least eight. persons, not suspects ().f.Ghe CCese, 8,S far as possible of similar age, heigh~, general appearance and class of life as himself r herself, 5. The accused should be alloviGdcu ~,;;:'::' ('nv position he chooses, and he should GC BlloweJeo change his position after each identifving witness has left, if he so desire, 6. Care must,be exercised ~o see that wienesses are not allowed to communicate with each o~her after thev have been -GO the parade, 7. Every person who has no businesi3 F,-C vlle parade should be excluded, 8. A careful.nQte should be. made Elf {j er each witness leavesGhe :parade, recording wheGhsr the witness . idenGifies Or o-~her circumsliances, 9. IfGhe wi~ness desires to see the uocuced walk, hear him apeak~see him with his had on or off the person o-Qndu.ctingljhc parade musteee that this is done, 10, The witnes..smust touch the person he identifies, 11. A~ ~he end of the parade or during uhe parade the accused be asked. if he is satisfied ,that the parade has been cJnducted in a fair manner and make a note of his reply, 12. In introducing ~he witness Ghe person conducting ~he parade should tell the witness that he will see a group of people who mayor mav not conliain ~he suspec~ed 'person. He should nOL be influenced in anyway whatever, 13. lhe person conducting the parade must act with scruplous fairness, othervdse Glh3value of the identification will depreciaGe considerably. :fhe record musu speak for itself ·(jhm;Ghe laid down: procedure was followed in 60nuucliing ~he parade. Ihe record of this case does not reflect that thi~ procedure was followed.aG alIi In my considered view it was wrong for Ghe trial court to hold 'hat the appellants were properlv idenGified in that parade. For the foregoing reasons J. find t it; is verv unsafe to uphold the decision of the trial court. I now therefore quash the conviction and set aside the resultanG sentences. I further order that the appell~nts be released from prison henceforce unless otherwise lawfully held. G. Matui, PR1"'1 EXli. Jur.