kashindye meli vs republic 2000 tzca 19 1 december 2000

IN THE COURT OF APPEAL OF TANZANIA AT MV7ANZA (CORAM: KISANGA, J.A., LUBUVA, J.A., And LUGAKINGIRA, J.A.) CHIMINAL APPEAL NO. 12 OF 1996 BETVEEN KASHINDYE MELI ........................ APPELLANT AND THE REPUBLIC .................. RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tabora) (Mackanja, J.) dated the 20th day s-f-November, 1995 in Criminal Sessions Case No. 64 of 1990 JUDGMENT OF THE COURT LUBUVA, J.A.i The High Court (Mackanja, J.) sitting at Tabora convicted the appellant of the offence of murder contrary to section 196 of the Penal Code. He was sentenced to death. He is appealing to this Court against conviction and sentence. Briefly stated, it was the prosecution case that the deceased, John Meli, the husband of Nduhile Gatulwa (PW1) who lived at Lamadij Magu District left for Nzega on 28.10*1988 together with his brother, the appellant, Kashindye Meli"""Sometime in November, 1988, the appellant returned to Lamadi alone, ','hen asked by PW1 about the deceased, the appellant said that the deceased had remained behind in Nzega and had sent for money for settling some problem. The appellant sold the deceased's six head of cattle for shillings 65,000/= and shortly left for a destination he did not disclose to PV/1, Since then the appellant did not return to his home at Lamadi in Magu District and the deceased was nowhere to be seen. 2 - The appellant's conduct raised suspicion that led to his arrest at Bunda in April 1989. He admitted before Ntobi Meli (PW2), his brother, and PW1 to have killed the deceased at Ijanija Village in Nzega. Consequently, he was charged with the murder of the deceased. He was convicted and sentenced to death. The appellant has appealed to this Court. He is represented by Mr. Rutaisire, learned Counsel. On the other hand Hr. Mwamporaa, learned State Attorney, appeared for the respondent Republic. In the memorandum of appeal three grounds were raised. However, at the commencement of the hearing of the appeal Mr. Rutaisire argued only-two grounds after abandoniag- the first ground. First, Mr. Rutaisire contended that the learned trial judge erred in sustaining the conviction against the appellant for murder on insufficient evidence. Elaborating further he submitted that the case against the appellant is based on circumstantial evidence because no one saw the appellant killing the deceased. The only evidence that tends to link the appellant, he said, was the evidence of PW1 and PW2. According to these witnesses, he maintained, the appellant is alleged to have confessed killing the deceased. The confession to FW1 and PW2, Mr. Rutaisire went on in his submission, still would not advance the prosecution case any further. In the first place, he said at the time when the alleged confession was made to p.71 and PW2, the appellant was in police custody. In that case, he ...said the confession required—independent corroborative evidence which was not available. In the circumstances, the fact that the appellant is alleged to have led the way to the scene of crime or that he sold cattle to raise Shs. 65,000/= would be of no availt Suyh evidence would not serve as independent corroborative evidence, Mr. Rutaisire urged. Finally, Mr. Rutaisire strongly discredited .•./3 - 3 the extra-judicial statement of the.appellant to PV/^t the Justice of the Peace. The reason he contended was that proper procedure was not followed in recording the confessional statement. We wish to deal first with the confession by the appellant to the witnesses PW1, M 2 and Detective Corporal (PW3). The learned trial judge found these as witnesses of truth. Being the trial court and having had the advantage of seeing the witnesses, we have no basis for doubting the credibility of these witnesses at the appellate stage. ISven then it is trite principle that independent corroborative evidence is required to support the evidence of PW1, PV/2 and PW3«r Mr. Mwarnpoma, learned State Attorney strongly urged that the appellant's conduct in raising shillings 65,000/= by selling cattle and leading PW2 and PV3 to the scene of crime provided corroborat ion. With respect, we think the learned State Attorney is not correct. It is common ground that at the time the appellant made the confession to PW1, PV/2 and PV3, he was in custody. He had not admitted commission of the offence prior to his arrest and being placed under custody. It is to be observed that at the very outset when the cautioned statement was taken the appellant did not admit killing the deceased. At any rate, the cautioned statement was not tendered at the trial. Ordinarily, one would expect that if the appellant had actually admitted killing the deceased voluntarily, he would make some indication of the confession from the very start. For this reason, it is highly doubtful that the appellant after having been in police custody, his purported showing of the scene of crime and raising of the money was independently free; The possibility that he did so in order to avoid torture cannot be discounted. In the circumstances, we agree ...A - 4 - with Mr. Rutaisire that the appellant's confession to PW1, F;/2 and W 3 was not supported by independent corroborative evidence. Another important aspect of the evidence against the appellant pertains to the extra-judicial statement Oxh. P.1. Mr. Rutaisire strongly criticised the procedure followed in taking the extra­ judicial statement. According to him, Hilda Shija (PW4) the Primary Court Magistrate, as a Justice of the Peace did not comply with the formal procedure required in taking the statement. For instance, he said, the appellant made the confessional statement, Exh. P1 in the presence of the court messenger and someone else. For this reason, he insisted, the extra-judicial statement should therefore not be relied upon in convicting the appellant. It was not free and voluntary, he concluded. Countering this submission, Mr. Mwampoma, learned State Attorney submitted that the extra-judicial statement was taken in due compliance with the procedure required. It was therefore free and voluntary, he emphasized; Whether tbeJPrimary Court Magistrate (PW4) Hilda Shija followed the proper procedure required in taking the extra-judicial statement we need not labour much. From the record, page 25 of the typed script, the procedure followed is clearly shown. The questions asked to the appellant and his replies thereto indicate that the appellant was a free agent. What is more, the appellant was ably represented at the trial by counsel Mr. Mahuna. There is no indication in the record of any objection against the admission of the statement Exh. P.1 on grounds of any irregularity. Again the complaint by Mr. Rutaisire, learned counsel that the statement to V*:’k was made in the presence of the court messenger and another person is not supported by the record. Worst still, at the .. ./5 - 5 - conclusion of the evidence in chief by Hilda Shija (P//4), Justice of the Peace there was no cross examination by counsel for the appellant on any unsatisfactory aspect of the extra-judicial statement or the procedure followed in taking the statement. At this stage on appeal, Mr. Rutaisire cannot therefore be heard to challenge the voluntary nature of the statement. As no doubt Mr. Rutaisire is aware, at the stage when F A was giving evidence, if objection was raised against the admissibility of Exh. P.1, a trial within a trial could be held in order to determine if it was freely made. That was not done. In the circumstance, we are satisfied that the extra-judicial statement Exh. P.1 was freely and voluntarily made by the appellant. At the trial, the appellant denied having travelled to Ijanija village in Nzega District with the deceased. He also retracted the confessional statement he had made to Hilda Shija (PW*0 the Justice of Peace. He maintained that because of torture by the police he admitted in the statement that he had killed the deceased. He further said that as a policeman had remained with the Justice of Peace together with the court messenger, he feared telling FWk of the torture. The learned.judge rejected the defence and accepted the confessional statement Exh. P.1 as voluntary and true. Like the learned trial judge, we are firmly of the view that the appellant's extra-judicial statement (Exh. P.1) was truthful. First, we can see no reason at all why the appellant could not tell PW4 of any torture by the police if he had been tortured. Secondly, and more importantly in the statement the details pertaining to the sequence of events leading to the death of the deceased are such that no one else other than a participant to the murder could do so. In minute details the statement .. ./6 - 7 - Much earlier, the Court of Appeal for Kast Africa had held similar view in the case of Tuwamoi v. Uganda /T9677 E«A. 84 when it said that: !l ... a trial court should accept any confession which has been retracted with caution and must before founding a conviction on such confession be fully satisfied in all the circumstances of the case that the confession is true/’ Applying this principle to the present case, it is clear to us that the learned trial judge was aware of the danger of founding a conviction on uncorroborated evidence. He looked for corroboration in the evidenG® of PW1 and l’V/2, VW? and the appellant's sale of cattle which as already stated was in our view not independent corroborative evidence* He was also satisfied that the confessional statement of the appellant to PW4, the Justice of the Peace could not but be true. This, we think, the learned judge was correct. The appellant having clearly admitted in the extra-judicial statement killing the deceased which was accepted by the trial court as truthful, we are satisfied that, that was sufficient evidence for founding the conviction -gainst the appellant. All in all, and for the foregoing reasons, the appeal is dismissed in its entirety. ../ 8 - 7 - Much earlier, the Court of Appeal for Kast Africa had held similar view in the case of Tuwamoi v. Uganda /l96?7 E.A. 8^ when it said that: a trial court should accept any confession which has been retracted with caution and must before founding a conviction on such confession be fully satisfied in all the circumstances of the case that the confession is true,5’ Applying this principle to the present case, it is clear to us that the learned trial judge was aware of the danger of founding a conviction on uncorroborated evidence. He looked for corroboration in the evidence of PV/1 and PW2, PW? and the appellant's sale of cattle which as already stated was in our view not independent corroborative evidence. He was also satisfied that the confessional statement of the appellant to FW^t, the Justice of the Peace could not but be true. This, we think, the learned judge was correct. The appellant having clearly admitted in the extra-judicial statement killing the deceased which was accepted by the trial court 03 truthful, we are satisfied that, that was sufficient evidence for founding the conviction -gainst the appellant. All in all, and for the foregoing reasons, the appeal is dismissed in its entirety. ../8 8 DATED at MWAN3A this 1st day of December, 2000. R. H. KESANGA JUSTICE OF APPEAL \ HE D. Z. LUBUVA JUSTICE OF APFEAL K.S.K. LUGAKINGIRA JUSTICE OF APPEAL I certify that this is a true copy of the original. \ " !\ IjL- NJ M. MWAIKuGILS SENIOR DEPUTY REGISTRAR