george michael rajabu vs the republic 2 1999 tzca 4 10 june 1999

IN THE COURT OF APPEAL OF TANZANIA AT FBEYA (CORAE: SAT ATT A, J.A. . And LUGAKINGIRA . J .A. ) CRII'TNAL APPEAL NO. 18 OF 1994 Bjil'l'fciiN 1. GEORGE I.IC-iAEL RAJA.3U jj a u p ? t t a m t ' c; 2. SAFtfELI YAJIN T-WAFUIE AND THE REPUBLIC. ................. RESPONDENT (Appeal xr^ra the Conviction and Sentence of the Hign Court of Tanzania at IringaJ (K wipop o , J .) dated the 7th day of December, 1993 in Criminal Sessions Case No. 36 of 1991 JUDGE rd'T OF Tiic. COURT LUGAKINGIRA. J .A.s The appellants George Kicnael Rajabu and Samweli Yasin Kwafute we re convicted of the nurder of Amir Khalid Chodota, a driver with the TANEoCO rural electrification project at Uwernoa in Njomoe district. The murder was alleged to have taken place on 10/11/89 at Lyamkera village in the sarre district. The appellants were jointly charged and tried with another person, Raymund oircon Ngondola, who was acquitted. The case for the prosecution was that on the evening of 10/1 1 /8 9 , the appellants purported to hire the deceased, who was driving a pick-up Land Rover Reg. No. TX 9782, to take them to Mtwango ] village to collect a luggage, but they murdered him in the vicinity of the village, dumped the body in an unfinished house at Lye inkera village, and drove off in the deceased’s vehicle to Tanga where they sold it. The prosecution relied . ../ 2 2 on the first appellant's cautioned statement (Exh.P7), his extra-.judicial statement (Exh.P12), tne second appellant's extra-judicial stateKent (Exh.p16) and evidence from witnesses to which we will have occasion to refer. In the cautioned and extra-judicial statements the appellants irade full and detailed confessions to the murder. The first appellant detailed his part of striking the deceased thrice cn the head with a iretal instrument while the second appellant spoke cf being present and assisting the first appellant to dispose of the body. Although at the trial the first appellant retracted Exh. P7, the trial judge found, after a trial within a trial, that the cautioned statement was voluntarily made; and although the first appellant then repudiated Exh.P12, the judge found tnat it was in fact made. Similarly, although the second appellant retracted Exh. P16, the judge found, again after a trial within a trial, that the statement was v-luntarily made. Generally, he held that the statements contained the truth and were additionally corroborated. Kr. Kwangole, learned advocate, who appeared for the appellants t ^ k issue with the finding on corroboration but his suomissions were resisted by Kr. Kulokozi, learned State Attorney. Before we turn to consider Kr. Kwangole's arguments we wish to disp'se cf a matter which came to our attention but to which neither counsel referred. This is particularly in connection with the first appellant's cautioned statement (Exh. P7) and to some extent the second appellant's extra-judicial statement (Exh. P16). In both .../3 3 - instances tne existence of txie stateirent and tne defence's objction thereto v/are trade known in the presence of the assessors. The assessors were then discharged and trials witnin a trial were held. In the case of Exh. P7, after the judge's ruling and the return of the assessors, Pi/7.3 who recorded tne statement was not cross-examined again on its voluntariness. He irerely tendered the statement, read it over, and was allowed to give evidence on other natters, Even when at tne end he was cross-exairined by tne defence counsel, not once was tne voluntariness of Exh. P7 reverted to. In these circuirstances we think the trial judge seriously irisdirected himself in admitting and acting upon Exh. P7 as he failed to follow the procedure laid down in Kinyori ivaruditu v. Reginam (1956), 23 -^ACA 480. In that case, after stating tnat tne existence of a controverted stat2rent should not be known to the assessors until it has been ruled admissible, their Lordships continued and said; The judge having then delivered his ruling, the assessors will return. If the statement nas oeen held to be admissible the Crown witness to wnorr. it was made will then produce it and put it in if in writing, or will testify as to wnat was said if it was oral. The defence will be entitled, and the judge should make sure of its rignt, again to cross- examine the Crown witness as to tne circumstances in which the statement was made ... i3oth in the absence and again , . ./ 4 in the presence ox the assessors tne norral right to re-exairine will arise out of any such cross-exarrination. Their Lordships went on to state the principle behind this procedure thus0 . The broad principle underlying that procedure is that tne accused is entitled to present, not merely to the judge but also to the assessors, the whole of his case relating to the alleged extra-judicial statement,” for the judge's ruling that it is admissible in evidence is not the end of the m a t t e r i t still remains for both judge and assessors individually ... to assess the value or weignt of any admission or confession tnereby disclosed and also the accused is still at liberty to try to persuade them that he has good reason to retract or repudiate the statement concerned or any part of it. In the instant case the assessors wereddenied the opportunity to assess the value or weight of the confession disclosed in Exh. P7 and the defence was denied the opportunity to persuade them and the judge that the first appellant had good reason to retract it. We asked ourselves whether the omission to follow the procedure warranted our interference with the decision of the trial court but we arrived at a negative answer. Excluding Exh. P7 there still remains Exh.P12 in which the first appellant made a longer and more detailed statement confessing to the offence. The trial judge found as a fact that Exh. P12 was made and we have no reason to differ. Although, on the other hand, the admission of the second appellant's statement did not 6 the case that the confession is true. The sanie standard of proof is required in all case*’ and usually a court will only act on the confession if corroborated in soue material particular bjr independent evidence accepted by the court. But corroboration is not necessary in lav/ -2nd the court may act 011 a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true. In thecase before us the trial judge found the appellants* statements to contain truthful accounts by stating: At the end of the trial ^the assessors/7" gave their unanimous verdict that the confessions of both the 1 st accused and the 2nd accused were voluntarily made and that they contained a truthful account of what happened, I share this view ,. „ After considering the detailed nature of the appellants’ statements, we think it was inevitable to come to that conclusion. That means the appellants could have been convicted even without corroboration to their statements. But the trial judge went further and looked for corroboration. He found corroboration in three instances % First, in the evidence of PW. 7 David Ngoda, the first appellant’s maternal uncle at whose home in Tanga the appellants arrived in the month of November, 1989 with Land Rover TX 9782. He assisted them to sell the vehicle to 'PW. 8 Hasnuckh Sachania. \ Second, in the evidence of PW.10 Evarist Nyambulapi, the deceased's superior at the Uwemba project, who related the deceased’s movements on the evening of I O / H / 89, and PW.ll Gladstone Komba, the deceased's co-drivsr. Third, the evidence of PW.2 Dr. Simon Mbuligwe whose detection Jl 7 - of three wounds -'n the deceased's head was consistent with tne three blows related in tne appellants' statements. I^r. Fwang^le combined PW.7 and PW.8 in the first instance of corroboration and observed that tnese witnesses were charged f ^r the murder of the deceased along with the appellants but were discharged under S.91 of tne Criminal Procedure Act. He stated, and correctly, that PW.7 had participated in the sale of the vehicle. F.ore^ver, the trial judge was uneasy with both witnesses, for he said: They have interests to serve especially since Pr j.8 is currently facing another case of receiving the sarre rr/v 9782 suspected to have been stolen, fr. IVwangole argued, in the circumstances, that the evidence ^f these witnesses required corroboration and, as such, it c^uld not corroborate the appellants'-statements. '.Je agree with Fr. IVwangole that evidence requiring corroboration cannot corroborate ther evidence, and it seems t^ us that PW.7 and PW.8 required corroboration since they appear to have been of doubtful credibility in their testimonies. For instance, their cautioned statements, Exhs. D1 and D2 respectively, indicate that they were aware that they were handling a stolen motor vehicle but they denied this in their evidence. Indeed they were serving their '»wn interests. tfe think, however, that even without the evidence of PW.7 and Pvv.8 corroboration on the vehicle aspect was furnished in the evidence of PW.3 S/Sgt Raphael. He arrested the first appellant at PW.7's home in Tgnga and recovered the vehicle, although already dismantled, at PW.8's garage. .../8 8 Regarding the second instance of corroboration, Kr. Kwangole submitted that PW.10 and PW.11 said n"thing touching on the offence. We think he was correct as regards the evidence cf PW.10. This witness merely said that he drove the vehicle TX 9782 to Ktera and returned it to the Uwemba T^LiiiCO offices on 8/11/89. The position was however different with PW.11. He related that on the evening of 10/11/89 the deceased drove him from Uwemba to Njombe where he was to buy drinks for guests who had arrived at Uwemba. Jftile he was having a drink, the deceased asked for permission to take the drinks to Uwemba, seventeen kilometres away, and return for him, but that was the last time pj.11 saw the deceased alive. In 2xh.Pl2 tne first appellant spoke of hiring the deceased at Njombe on the evening of 10/11/89 to collect a luggage at Ktwango, and going with him to Uweirba where he offloaded beers, and then driving on to Ktwango. In Exh. P16 the second appellant similarly spoke of the deceased coming to Njombe with his boss on the evening of 10/11/89 and later collecting him and the first appellant for a drive that took them to Ktwango. We are of the view that the evidence of PW.11 was corroborative in providing confirmation that the deceased was hired on the evening of 10/11/89 as stated by the appellants. It was not in dispute that the deceased was never again seen alive. Finally, Kr. Kwangole conceded that the doctor's evidence on the deceased's wounds was consistent with the blows as narrated oy the appellants. We wr'uld add another item of corroboration. The deceased's body was discovered in an unfinished house at Lyamkera village where again the appellants stated to have disposed of it. . . ./9 As stated earlier, the appellants could have been convicted on the strength of their statements without the necessity of corroboration. rfe are satisfied that the available corroboration further put their guilt beyond reasonable doubt. The appeal is dismissed. . DATjiD atf'J^taYA this 10th day of June, 1999. v- I ; „ A.5.L.RAKADHANI JUSTICE OF APPEAL B. A. SAfATTA JUSTICE OF APPEAL K.S.K.LUG a KINGIRA JUSTICE OF APPEAL > I certify that this is a true copy of the original. ( A . G. 1WARIJA ) DEPUTY REGISTRAR