william mwakatobe mwakaje and another vs republic 1996 tzca 30 28 october 1996

Ill THE COURT OF APPEAL OF TANZANIA hT liBEYA (C03Mi MNZmS.. J .A . l KFALILA. J.A.. And LOPVA, J.A «1 CPJI3NAL APPEAL NO. ’65 OF 1995 BETWEEN TOILLim IIOI^TOBE <9 KHAKAJE A. . . ^AEFSLLAliOS* e. le n t a iib o u l e f AND THE HETUBLIC............... ....................i » BESPONDENT (Appeal from the Conviction and Sentence of the --'igh Court of Tanzania at. Mhayal (Mwipopo, J «y dated the 4th day of August, 1995 in Criminal Sessions Case No« 90 o f 1993 judgement OF THE COURT MNZAVAS. J 4At s The. a&pellani-cjy TJilliam Kwaicato.be and Lent, ^jahalo.1^ tseajfL jo in tly charged with and oonvicted o f murder c/s 196 of the Penal ^ d e by the High Gouxt (Kwipopo, J . ) s ittin g in libeya and the BiaMatcLry 'sentea*** of death was handed down* D issatisfied "by the finding of the High Court, they hava. -h>. this Court, The charge of murder alleged that the appellants. on or a-'bon’t the. 1st day of A pril 1993 at K itu li V illage within the d is tr ic t of JiungHe Mheya Region murdered one? Angongwisye Mwahaje. A fter a f u ll t r ia l the learned t r ia l judge was satisfied, that the prosecution had proved the charge of murder against both appellants "beyond reasonable doubt and, as already mentioned abowe* eQn.via.ted them and imposed the death sentence. Before us Mr, Ilwangole, learned defence Gcunsel who appeared fo r the 1st appellant, William Mwakatobe, complained and argued that the learned t r ia l judge erred in convicting the f i r s t appellant by relying on the f i r s t appellant *3 retracted, confession which, i t was « • • »/S 2 - argued, irae- not corroborated, l a h is second ground o f appeal Mr. I>fc.-aigole submitted th a t the t r i a l judge erred "both, in law and an points o f fa c t in not h o ldin g that the prosecution had f a i l e d to prove t h e ir o&se a g a in s t th e 1st ap p e lla n t beyond reasonable doubt. Mr* Kfcunibej learned Counsel^ advocated £ocr th.^. &eoond .appellant* Lent Awboicile* In h is one ground of ap o a l the learn ed ^ e £ e a o ^ .0<3U i i ^ l says "The second appellant was wrongly convicted on the b a s is of h ig re tra c te d co n fession whose c o m -b o ra tio n was eretremely weak*1* lii learned Counsel a ls o echoed & r, Kwangole4 s sutmiesion that- the. leaxiiQ^ t r i a l judge should have found that the prosecution had f a i l e d t^rprove the charge o f murder again st the ap p ellan ts ’bejrond x«aso n ab l^ doubt^ In re b u tta l H r, 1'ulok ozi, learn ed it a t e Airtarrieyj ^uppocrfc^l. t h « con viction . He argued that the learned i j i a l judge was -s a t is fie d th *± the a p p e lla n ts 1 confessions were a tru e account of what happened and that having s c found he had no a lte rn a tiv e but. to fin d the a p p e lla n ts g u ilt y o f the offen ce o f murder as charged. The issu e before the Court o f f i r s t instance was whether the oonfessions o f the ap pellan t before the ju s t ic e of the peace could be r e li e d uponj th e ir re tra c tio n notwithstanding. In answering th is question the learned judge said in te r a l i a on page 74 of the typed judgement ---------- "Next day, 6/4/93 both accused, were sent to the PCM ac tin g as a ju s tic e o f the peace ------- 'fcoth accused did not complain a^s having" 'boon -tortured t--e previous day by PF.6 ------Of course txstfa accused cai<^e that even PTT» 7 was b eliev e d fcy tiien co oe another police o ffic e r •-----» If that wan the case they s t i l l had another chance on 7/4/93 when both accused were sent to the doc cor to be examined as to t h e ir mental and physical h e a lth , (the d o c to r)* t e s t i f i e d lie examined them and talk ed to them,. He found ti.em without auj~- .aajftuyg, markg pnri the ^\W/' 3 accused themselves did. not comp.'.ain of any pains or tortures having been —«— in flic te d upon them” * The learn ed t r i a l judge continued and se : ’’To my raind the accv.seds' story o f torture appear to he fa n c ifu l lie s cooked up in the prisons during the lon£, incarceration period of 2 years ----■« IJhat PW.7? (the ju stice of peace) t e s t ifie d I believe is the truth that the accused w illin g ly and voltintaxily gave the extra- ju dicial statements to him"* We have painstakingly examined the evidence tendered in ilia. High Court including the arguments by the learned def ence Counsel that- there was no corroboration of the appellants 1 with the learned defence Counsel that i t is always d e s ir a b ly lo o k f o r corroboration in support of a oonf^ssic-i which hate be^n j^teac -ie d before acting bn s'ach confession to the detriment o f an accused perso&i But w ith even greater respect to the learned Counsel there i s a long and unbroken chain of a'athorities that a court may convict on a retracted or repudiated confession even without i-orrobdratian* In the caa® <?f Jt v GAS s/o Haimba and Another - (194^) 12 SACA 82 i t was held thats " ‘There is no rule of law or practice making corroboration o f retracted confession essential* Corroboration of a 'retracted confession is desirable but i f the court is fu lly s a tis fie d that the confession cannot but be true, there is no reason in law why i t should not be acted upon it " * In another decision three years la te r tho Hastem. A fr ic a Court of Appeal in R v IIAPIHERE s/o WAYA - 1943} 15 '•SAGA 56. s a id : -* 4 "A court may convict on a retracted confession even without corroboration -faocigh. such confession, must be received .7it ii great caution and reserve"* And.* "to mention the celebrated decision. rua tha case o f TWJld'.Cl v UGA1IB& (1967) BA 84 the Court had this to say in ter a lia * nWe would summarise the position thus? a t r ia l Court should accept a=ny confession which has been retracted or repudiated with caution, and must before founding a conviction on such -a confession, he fu lly s a tis fie d in a l l the circumstance of the case that the confession i s true* The same standard of proof is required in a ll cases and usually the Court w ill only act on the confession i f corroborated in some material particulars b; independent, evidence accepted by the oov.rt* But 'o4aziy^b*>- ration is not necessary in law and the Court may aot on a confession alo.-e i f i t is fu lly sa tis fie d a fter considering a ll the material points and surrounding circumstance that the confession cannot but be true"* In this case we are with respect to the learned t r i a l judge, .fu lly s a tis fie d that the appellants' confessions to the ju stice o f peac.^(PWi7 ) were sf> & «tailed a elaborate and thorough that no other person would, have known such personal d etails but the appellants* Appellants.* retracted confessions which we have found to be true were, in our oaasi&ered view, clumsy attempts to evade the consequences, of th©ir criminal acts. We are sa tis fie d that the appellants were properly cvom&oted. o f the offence of murder as charged# The sentence of death is tiandaioxy-* In the event we order that the appeals be .dismissal, in th eir en tirety, * *• */5 BATED a t MEEIA t h i s 28th. day o f O ctober* 7996* n . s . jik za v a s JUSTICE or APPEAL L .H . M^ALILA JUSTICE OF APPEAL D .Z . LUBUVA JUSTICE 0? APPEAL I c e r t ify that th is i s a true copy -of ■££*.&*-o r ig in a l r