20030623 TZCA Mwanza

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JJ·J THE cpURT OF APPEAL OF ~.ANZANiIA: A'l' MWANZA ··•··· . --,~----. ·- CRIMINAL APPEAL NOo 43 OF 1999 SHIJ'A LUYEKO o:) ,o· o·o O O o O O O O O O Q O O O O O 0 APPELL.ANT • AND THE REPUBLIC ooooonooooooooooooao RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tabora) (Masanche J .. ) .... ,._ ... - - .. -::J......:-- d ate d the 8th day-of Ap~il, 1..999 in Criminal .. sessions_C_ase _No~ 101_, of •.1..9.9_5 _JUDGMEI'!,':1;'___0F TFIB COURT The .appellant was convicted of murde_r and sentenced to death by the High Court (Masanche, Ju) sittinr: at Taborao He is now appealing·against both conviction and sentenceo The background to the case may be stated as followso The deceased, Ngwashi Nhyama was' an ·Jia lady and a mother of the a:ppellai.Tto The appell~nt had a son who diecl while in standard III and t'he appellant believed· that ti.1e deceasF:r:l had bewitc;.1ed her grandsono He then contrived the idea of hiring one Lifa Nkinga (now deceased) to kill the deceased~ He approached the said Lifa ]fkinga who agreed: to do the assignment at an agreed amount of Shso 20,000/== and two cows. The appellant made a down payment of Shs. 10,000/= but the hired killer a.id not inform him when the assign-- ment would be accomplished., ·During the early h•.qrs o:f the ' :,.- t'::r-~ ..:-,..,-i.e-n ooo/2 :. \Jr ✓Q-0/JJ. -,. •• \:~ I •I 2 27o12o93/28o12o93 the appellant went to his mother's house which was in the same compound, and found his mother deado He notified his aged father and childreno They noticed blood on the.head and on the deceased's clotheso ·The deceased was . subsequently ouried and af.ter ~wo days the appellant ,·!ent to Ka11ama where he s;tayed until his arrest on the :27 o3o 9L~. The appellant vra.s convicted solely on the strength of a cautioned statement (exhibit P3) which was recorded by PW4 Bo6204 Staff Sgt o Castory o This cautione.o stktement was admitted in evidence Hithout any objection .from the defence coun.sel, one r1ro Kaundao The appellant gave evidence on affirmation and did not call any wi tnesso Eis side of the story was to the ei.'fect t"bat on the morning of the 28012.·93 when he went to his mother's bouse 9 he found her-dead. He consultc-d with his· father and then buried the dece"ased. Ifo testified thnt h0 did not. know what wa:;:. tl1c cause of her mother 1 5 de :::.th ::rncJ ~hat two day.s after her burial he went t·o ICahamao In th.:: course of examination in chief, the appellant ste-tc-:d: ;;I told him I d~d not know wbci ,killed my mother. I did not tell him that I had hired Lifa Nkinga to kill·my mother. I did not write soo · The statem2nt read here bas b0Em written by the Po lice o.ftcr they b2at me up.. Yes, I wrote so, but it was under threato I was forced to say so .. There were only the two of us o When he ca.'Ile to take me, -he grcet~d me with a sla:po I do not know Lifa Nkinga mentioned in toe statemento 11 ooo/3 ,, :,-, 3 ~ y I I Th2 statement being referred to is exhibit P3 o \.Jc .shall revcr;t to this issue later on in the course- of this ,iudr:.:ment. 'l'hc trinl jUdf~G 's decision in convictin(:: tbc: (i) tl1at the b·:i.o.l Judge errc:!d in convicting tbe appellant on the ' ' basis of the cautioned statement without any cogent supporting corroborative evidence; an~ (ii) tho.t the le 9.rned trial .. _judge_ was ,, :·. • - not justified in biasing the gentlemen assessors when he was. summing up the cnse to themo At the hc;iring of the a1--,p20.l, Mro Nr-tsimirc, 102,rned Counsl.?l, r,::-{)rc"cntcd tl1~ -:ippcl lant and Mr. Mlip::tno, le::irnc-a State Attorney, r0pro~0nt0d the ~2spond~nt Republico Mr. lfa.s.imire strongly ,1.ttackcd tbc mo.nner in .which the trial jud(~c summGd up the c:i.se to the assessors a The· learned Counsel singled out tlJe fol.lowing inapances where the trio.l judge b;i.d tbis to s:-J.y to the assessors - . ' rrNow i:f I s,ma you b~ck. to the cnutioned str,.t-':!ment. Do you believe the story a.s told in th~rc? I find t~e. st(?rY to be so telling 1111d dctailc.ci"o Ii/ is s~ detailed tl"J::..tt Co.story could not, surely have fabrica-c.:!d it ; o ,.' And l~ter on he said - ·' "The defence c-3.sc you will have noticed \'l.,r-; -'.~ hlnnk dcni:->.l o::': the- whole writin~ 71 ,/ l f 4 of the cautioned statemen~o This could . ,. :·•· ... 0 I ' not be so especio.lly- a's you sn.w he r(?°, · I I that the st!:'.temcnt was tendered in ··as II an exhibit without. a qhallcngeo Coallenging i~ after it.~as admitted . .• I . . ' • ' I' as exhibit was purely showing en o..f'terthought .. II . ,ri r: . ' " The compl:J.int by Mro ~a.si.~~ W:~$. to, the. -effect tho.t • ,1, •, the summing-up -md the trj_al jµdge_' s remarks influenced .. ·. '-~ ·,:; ,· . ·=· . ' . the opinion of the assessors. ~e had disclosed his own views beforehand to the assessors o.nd this W3.G not propero • .•· t. •• • ;. . The assessors h2..d to give 'tbe:i~ ind'ei;eriderit -q.nbiased -~ . : ; . . ': opinions to th,:? Courto This was "·tne':gf-st. of:'1the · second • ground of nppC?al o ,. On the first ground of appeal, the learned Counsel ·~ . .-.:. .::.:. :.. : ;· ~: ~ . ;.:·. ..., . . faul tea the trial Judge for convicting the appellant solely :..·/ ,,,::~~~·-.;,(:~:~' .. . , .. '. : on.the strength of the cautioned s;tatement (exhibit P3) .,.. ~ -. ~: ~. .1~ ...• ;_:;• ' . , ·_; ~} .... which w:J.s subsequently retracteg._.op!.reip-udiated ,in the ,; :_, I ~:i_. -,'- ~,'1_ ~:.' .:_;,!'_: t·. ~ . .: ! - course of triaL At tho.t poin~ ,_i~ time_, Mr o Nasimire added, th0 trial judge should have inquifed as to whether . .. ~·.t ....,.,•• , .!) ~ 1 •. ,\:t,A:! ~- \•: •·v~;,:• or not the c:i.utioned· statement had b·e·e·n made ·voluntar;i.ly o . .·. . ... '·~·:··\ ~..i;~·r~·~ri1_"L~ri. 1 ·::•. .' ·•. : ·:.· :~. 1( ; · · He also complained that the procedure .of recording the :.·.-~,;J • r~:,: :...):_j_.;,~.:.. ::.~ f.:-··t:.:./ 1 • - t:. stnt.ement ha.d not been compli 7.~:i/[~:t~_'• t These -~~ttcrs, he I· submitted, h::..d not been con~idered by:tQc trial judge • • •. ; • ••• •,.. •: \ ' I ! . I On his pc.rt, Mro Mlipo.n0Jai~'f\farriea·S1tat.e:i'.!Attorncy, J I submitted that the trial judge·rwa,s' e·xplairiirig · to the ' -✓ i ; 3'.ss0ssors wh:-:..t was cont11ined in,i.-exliib:j;t P,;=-.:ihe,:,:co.utioned ,, stntement O Thero W3.S no misdi.rectiori','.·in -, l-r..w'·.or ''in fa.ct ... and· tln t tbe asnessors could not have come to a 11iff2rcnt ... ., -r; 5 .II I: conclusion on the fac tn as they .stood o C!:'hr:? learned State Attorney further. submitte.d that a court can convict solely on the basis. of a cautioned statemE;!nt after warning itself I of the dangers of convic.ting on the ba.si~ of such evidence without corroborationo In his view, there were otber factors which corroborated the appellant's cautioned state- men-t such as the alleged hurried burial of the deceased and the appellant's moving to Kap.~ma two days after the burialo We propose to deal with the. ;first ground of' appeaL • • • I. : • • The complaint was the absence of corroborative evidence '. to support tt1e cau.tioned statemento It ,is trite law that for a cautioned statement to be admitted in evidence, it must be proved affirmatively by the prosecution that it was voluntarily made o If tl1e court is satisfied that the statem<?nt was made voluntarily and was recorded correctly then it should proceed to admit it in evidence, but if it is not so satisfied, then it should accordingly hold it ina.dniissibleo (See: (CAT) Orim:fuai Appe~i No. 138 of 1994- between •'-"'-•-···· Athuman ______ _...... _Rashid . .._._.___ v o ·''fr. ('iinre~art~d)) . .;- '. The app'?lla.nt' s ca1.1tion statement was admitted in evidence without any objection from Mro Kaunda, who was the defence Counsel on the 30.3.99 when PW'+ tendered it,in evicknce .. He is th<: o·ne who recorded the. 'statem~rit, and waR cross•~ examined on it. Admittedly, ·there was no quest~on asked on th(;. voluntary nature of the statemento The ~:ppellant however, in the course of his examination in chief purported to retract or repudiate·the statement alleging 0 0 ./6 - - - , :riSJ 6 t.biit. he was under threats and that he was beatenu But when / examined by the 2nd assessor, the appellant said - / "That statement, true was tendP.:r.ea in court w{thout challenge, i:f I may say so. It is when the accuseQ was testifying that. it appeared the accused was retracting it. But sub- stantially this statement was not denied. In fact both gentlemen assessors are of the view that the I statement is correct ana··a·true version of what the accused told the -police. Both wondered why, if the statement was procured by torture, the accused should not have told his advocate for him to·cballenge it and let a trial within a trial be conducted to ascert~in the volun- tariness of the statement.:, It is obvious from the liliove passage in the judgment of t~e trial court that the voluntariness . ·. of the cautioned ,,• statement was considered oy.'.botb itie trial judge, we are satisfied that the cautioned statement'was made voluntaril:y 'lhis is unlike wbat bad happened in the case o:f J-1.9,r.:r,t1?. -~~Jl_g~__?.-.:.l]__9_£'!.9.....£1h.Et,:i;'_?•...Y.:_..E (OAT) Criminal A-p-peal No. 100 of 1995 (unreported) in which _the trial judge did not examine the question of the voluntariness of the confession against the reasons given hy the a-p-pellant in bis defence at the trial .for retracting· or repudiating that confep,sion. ,In that caEe 7 this Court undertook to do what tbe trial ' court should have done, that is~ t~ decide whether or not the alleged confession was voluntary. A.s stated before, .•. /7 7 in this case, .tlJe trial judge and the gentlemen assessors I, ,. duly cortsidered. the issue and was of the view that the I' statement was indeed a voluntary one. The tr_ial ju03e did not stop there and stated, after quoting the case of f Tuwamoi ~~~B:.8F~ (1961) EA 84, that - "Such Court of law can convict on such statements without corroboration, proviaea the court warns: itself of convicti~g without there being corroboration~,; The· ·trial juc1ge then was satisfied. that the· caution statement was volunta.r·y and true and this was enough to found a conviction. In the circumstances as the statement was found to be voluntary ano true the trial couj~t was entitled to convict ··the appellant .-,±t?out-corroborative · evidence. (See also: g_i.2.~.ard LubjJi_~ case, supra; (0AT) Criminal Appeal No .. 18 of ·1994-·-between (i) Q_e.9}·~ l~i_c_b_ae l__'f_{aj_abu (ii) :~~-~~-L.X.§l-_sin __t1Jl~-0J.J.e_~..Y.!.--li (unreported) • On our part, we would r-;o :3. ste-p furtber. I.t wil 1 be recarled that after the appellant had found that his n:nther was dead and saw blood on her head and clothes, ., his conduct thereafter did not show .that :;, . ~·· ' he was in any" '"'· .. way shocked at all by wbat he saw before his owr1 l1yes. The blood on the head corroborates the post..-mortem examination report? exhibit P2, that" th~ death was not a natura~ one ·but was aue to head injury and this should have aroused his curiosity. This tak;e:n. together with the fact that he had hired a killer to end .,the life of his mother shows that it was a relief to him to see the ola 0 0 .,/8 ... 8 lady out· of the planeto There is thus no merit in this g~round o.f at)peal •. / The second complaint by Mr. Nasimire was essentially to the effect that the trial judge-misdirected the asses.sors in his summing-up in the sense of influencing his views upon themo The trial judge, te added, had disclosed his own views before the.assessors had expressed their views C'n the mattero In the case of ~1-.lZ.i!:.~ l'1a\:,'_e~:~"'l Cf992J TLff 23'1 , tbis Court made the fol lowing observation at page 236G •·· 237B -- :iour observation reiates to the aspect where the Judge expresses or arises (sic) his ~wn·' views wtlen summing up to tne·assessors. Where this happens, as' indeed, .. in the present case, we think that it can influence the assessors in making u~ their own minds on the issue, or.issues being left with them for conside- rationo For in practice assessors have hi~b regard and respect for the Judge and bis opinion because the Judge is a learned and. ex- perienced man in legal' mattEfrs and also in human affai1.'So .-'--As such one would rarely expect assessors to come up with an opinion different from·tbat expressed by the Judge on a particul-ar-mattero On that· account it is considered approp- riate th.at when summing up to ••• '/9 ' . 9 / asseBsors the trial judge shoul~ as far as possible desist from disc- losing his own views or making remarks or comments which might influence the assessors one:way It I or the other in making up their own minds about the issue or issues being left with them.for corisidera- tiono The summing up should be un- biased and impartial such that it · leaves the assessors to make up their own minds inde:pendentlyo .. '~ .. ~ ·1 . We wish to re-affirm the stari'd taken by this Court I on tbis aspecto It hardly needs to be overemphasized that while summing up to assessors trial judges would be well ndvised to v1i.thhold their respective views 011 the evidence close to their respective chests. Time will come soon thereafter while composing and delivering their considered judgmentso In this, it is clear,from the record after the trial judge had summed-up to the assessors, he asked them to state their respective opinions. The f'.irst assessor Abbas stated in part as folloWB' - ':The detective told u·s tba:t he recorded the statement volUnti:U'ily~,-, ,.:The· whole. story was toldo It was.:_~u~rf,d~:yail~d. The beating issue is an afterthought. I entirely agree with the· caution statementu And the se~ond assecsor·, Francis stated - .. · "My Lord, I will give my opinion.·, I. have heard all the witnesses •.- 10 I have listened to the accused himself quite carefullyo., Be was not, I must say, forced to writeo We asked h{m why he did not tell.us at the begin- . . : ·f! ·:.,, . : I •. ning that he had be~.P tortured- into writing the statement,, and said he he was not askedo ._Why? The accused again was asked why· he had to wait to be asked if the matter vexed him, he did not replied (sic) reply." The opinions of both the asse~~;rs a.re· clearly based on •, •• , ,· El · : the cautioned statement that . was • tendered ·.,•. ,.•. 1. ' in evidence by PW4. The assessors bad put questions to the appellant a.nd were not-satisfied with his answerso We entertain no doubt at all that the assessors were not inf'luenccd in any manner by the summing up of the trial judgeo It was their own evaluation of the evidence thaf was before them, and .... ' ' reached independ·ent conciusfonso •I•: This'grouri:a of appeal collapses as well. The· next matter that falls for con~ideration and t determination is whether or not the appella,1t and Lifa Nking~ (deceased) ha.d form~d a c;mmo'n intention to col'J'lmit murder, that is to kill the deceasedo .The trial judge was of the view that there was .cominon intention established between the appellant and the late Lifa Nkingao With all due respect to the lea+·ned trial judge, WfJ do not agreeo Section 23 of the Penal Code, ...Capo 1.~ provides as fol lows i'23o When two or more persons form a com~on intention to prosecute an unlawful purpose in oonjunction with one another, and •in the 0 0 .,/11 ... . 11 prosecution of such purpose an offence I is committed of such a nature that its I commission was a probable consequence of the prosecution o:r· such purpo'~e, each of th·em is deemed to have commit-- ted the offence." In order to bring the appellant within this section, the following facts must have been proved~ (i) That two or more p~rsons, of whom the appellant was _one, each formed an intention to prosecute a common purpose in conjunction with the other or others; (ii) That the common purpose was unlawful; (iii) That the parties, or some of them, including the appellant, commenced or joined in the prosecution of the common purpose; (iv) That, in the course of prosecuting the common purpose, one or:more of the -participants murdered the deceased; . ' (v) That the commissidn.of the murder was a probable consequence. As can be seen from the cautioned statement and the law -extracted above, the appellants intention was to kill the deceased. I So Lifa Nkinga killed the deceased for payment as agreed. In that situation we are unable to •• • I ' see ?n! common intention, in which case section 23 wasin- applicable on the facts o:f the case. We are however of 0 •• /12 ... • 12 / the settled view that the appellant falls v:,i thin the au!bi t I of section 22 (d) of the Penal .Code which reads - I I / ;,220 When an offence is committed each of the- following persons is deemed to nave taken part in committing the offence ana to be guilty of the offence, and may be charged with actually committing it, that is to sa:y - (b) (c) (d) ony person who counsels or procures any other person to commit the offenceo In the la6t mentl'.oned ·case' : .. , ; ' ..., r, .; .. ..... : ~ he may be charged. either .·• with committing the offence or with counselling or pro- curing the commission A conviction o'f counseling or procuring tbe ciommissiori of an offence entails- the.same ' consequences- in-~ail .respects as a conviction of commit-- ting the offenceo Any person w1.10 procures an.other to do or omit to-do any act of .• , ··. . • . • ·. : ·!-; .• - ·r~ . ~ ·. such a nature that~ if.' _he· haq . himself done the ;·act o~ made the omission, the act .6r omission would hnv:c: constituted an ... 13 offence on his pa.rt, is guilty of an offence of · the same kind., and is liable to the same punishment, as if he had him- self done the act act or made the omission, the act or omission would have constituted an offence on his part, is guilty_· of ~-:; 9ffep~e .. of the same kind, and is liable to the same punishment, as if he ·, ·\ had himself done the act or ,·l made the omission; and he may be charged with the act or making the__ o~~~~~pno II :\ ·,· J. • ..• -. ..• :· . ·The appellant's cautioned.statement to PW4 reads in part as follows:- II tulipofika huko tulimkuta ametoka na baadaye alikuja na hapo nilimwambia shida zangu . kuwa AMUUE MAMA YANGU, lcwa vi le yeye anafahamu vizuri ka:d hiyo na ha-po tulikubaliana na Lifa s/o Nkinga na nilienda mwezi wa Desemba 1993 tarehe- sikumbuki na tulipatana kwamba mimi ni tampa ng'ombe mbili na TShso 20,000/~ (siku bi~o nilitoa Shso·10,000/-) •'·•· ., . And he continued:- "niliyejua lcuwa aliyemuua ni Lifa s/6 Nkinga ku tokana na makqbalian•· yangu na yeye sijui alikuwa na watu wangapi siku ya mauaji hayoo :; o o o/'14 ... .~.• /.-~.7,. I I . / 14 I I It is our considered view that the a'[rpel lant falls ·/ within the ambit of section 22 (d) of the- Penal Codeft The appellant procured Lifa Nkinga· to murder the deceased and was properly charged with actually committing itft For the reasons we have hopefully amply given; we find no.merit in the appeal o It is accordin:gly d°:L"smissecL .•. DATED at MWANZA this 23rd day of June, 20030 Do. Zo LUBUVA ___ . _____...,..,_-.---- JUSTICE;., OF APPEAL Eo N. MUNUO JU~TI_C_Jj}~ ·oF . APPEAL H. Ro NSEKELA JU_~J.'.J.£1L.9..:t APPEAL I certify that this is a true copy of the originalo .