Noah MwatebaDavid Kandonya Another vs Republic DC Criminal Appeal No

IN THE HIGH C O U RT OF T A N Z A N IA AT MBEYA (DC) C R IM IN A L APPEAL NO. 102. OF 2004 IN THE DISTRICT C O U RT OF M B E Y A AT M B E Y A O R IG IN A L C RIM IN A L CASE NO. 617 OF 1999 1. N O A H M W A T E B A @ DAVID K A N D O N Y A 2. STOM EN PA TRIC K Y A N D O .................. A PPE LL A N TS VERSUS THE R E P U B L I C ............................................. R E SP O N E N T JUDGEMENT LUKELELWA, J. The appellants N oah M wateba @ David K am on g’onya and Storemen Patric Kyando hereinafter variously referred to as the First appellant and second appellant respectively were on 11th May 2004 Convicted by Mbeya District Court on a charge o f Armed robbery Contrary to sections 285 and 286 o f the Penal Code. They were each sentenced to serve thirty years imprisonment The appellants are not satisfied with the findings and sentences imposed on them, and each has preferred an appeal to this Court. Their appeals have been consolidated. Evidence was led at the trial that in the night o f 25th July 1999 the house o f PW3 Pili M w akajinga was burgled and PW3 assaulted by bandits wielding guns, iron bars and jacks. The bandits made o ff with two radios, make Sony, two Seiko wrist watches, US $1,700, T .shs.70,000/= and a Scandinavia bus ticket for Dar es salaam, all belonging to PW3, who reported the incident to M beya Police Station, and at Scandinavia bus booking office. On the strength o f that report one Paulo Shimwela, deceased, was arrested at Scandinavia Bus booking office, in possession o f the stolen bus ticket. The said Paulo Shimwela was interrogated by PW 2 C.1430 Detective Sergent Emm anuel and said that the ticket had been given to him by one Dole or George Njegera; who told him that his sister could not travel as she had fell sick. On 25/10/1999, the first appellant was brought at the police station Kyela Police Station. PW 2 interrogated him and confessed to have Committed many offences including the offence at the home o f PW3. The first appellant mentioned the second appellant, and Issa Ruben, Lwitiko Ruben, Ben Boaz White and George Njegere Dore as participants in the commission o f the crime. PW 2 deposed that he recorded a Cautioned statement o f the first appellant before the latter was taken before a Justice o f the peace, PW1 Abdillah M. Salum, to have his extra - judicial statement recorded. On the strength o f the cautioned Statement made by the first appellant, the second appellant was arrested on 30/10/1999. He was interrogated by PW 2, and Confessed C om m itting the offence, and a Cautioned statement made by the second appellant was also recorded by PW2 although, this time the second appellant was not taken before a Justice o f the Peace to have his e x tr a - ju d ic ia l statement recorded. In Convicting the appellants, the learned trial Resident Magistrate held that the only evidence inculpating the appellants were their cautioned statements before PW2, namely exhibit P2 and exhibit P3 for the first appellant and second appellant respectively, and the first appellant’s extra - judicial statement, exhibit “P . l ” made before the Justice o f the Peace, PW1 Abdillah M. Salum, who is an Honorary Senior District Magistrate. The learned trial Resident Magistrate property addressed him self to the fact the confessions had been retracted by the appellants, who had given evidence in defence claiming that the Cautioned statements were made by them under duress, after they had been heavily assaulted by the police officers. At one time the appellants went as far as stating that the statements were written by the police officers, and in turn they were forced to sign the statements. In other w ords they were repudiating the cautioned statement. The learned trial Resident Magistrate made an inquiry o f the allegations, and after the inquiry and the circumstances o f the case, he reached a conclusion that the cautioned statements were voluntarily made by the appellants. He then dwelt on the law governing retracted Confessions, citing the decision o f the Court o f Appeal o f Tanzania in Hem ed Abdallah vs Republic [1955] TLR 172 where the Court held, “Generally it is dangerous to act up on a repudiated or retracted Confession unless it is corroborated in material particulars, or unless the court, after full consideration o f the Circumstances o f the case is satisfied that the confessions must be true. Once the trial court warns itself o f the danger o f basing a Conviction on uncoiToborated retracted Confession and having regard to all the circumstances o f the case it is satisfied that the confession is true, it may Convict on such evidence without any further ado.” The learned trial Resident Magistrate warned him self o f the dangers o f acting on upon a repudiated or retracted confessions o f the appellant, and after carefully taking into Consideration all the circumstances o f the case proceeded to Convict the appellants. In his petition o f appeal the first appellant has raised several grounds o f appeal including that he was not found in possession o f any arm or ammunition and did not conduct undergo an identification parade. Further and pertinent to the appeal the first appellant raised the ground that a trial within trial procedure was not conducted by the learned trial Resident Magistrate before admission o f the Cautioned statements, and the extra - judicial statement. This ground o f appeal is also found in the petition o f appeal o f the second appellant. I have carefully considered the grounds o f appeal raised by the appellants. I have also microscopically scrutinized exhibits, “P I ” , “P2” and “P3”, and I have found that both the extra - judicial Statement recorded by PW1 and the Cautioned Statements apparently show all the legal procedures were adhered to in recording the same. These included, Cautions given to the appellants before recording the statements by PW2. The times of Com mencing the interview and the time o f ending o f the interview. The questions where the appellants would like to have any o f their relatives, friends or advocate present during the interview was put on them, but their answers show that they were ready to give their Statements in the absence o f any o f the above persons. The statements were then written by PW2, read over to the appellants, and asked to sign them. Every page o f the statement is initialed by the appellants. Then the major rules o f procedure for recoding the statements were observed by PW2. As regards the extra - judicial statement. The relevant questions to ensure that the first appellant was a free agent was put on the first appellant by the learned Honorary Senior District Magistrate before recording his Statement. This was after No. B.8550 D/Staff Sergeant Salum, who had taken the first appellant to PW1 was asked to retire to a place where he could not hear the proceedings. A Corporal inspection on the first appellant was conducted by PW1 to ensure that he had no fresh wounds, swellings or scratches. The Statement o f the first appellant was read over to him by PW1 and allowed to make corrections if any before signing the same. The issue o f admission o f Cautioned Statements objected to in Subordinate Courts as not having been freely and voluntarily obtained was considered in the Case o f Masasila Mtobo V.R. [1982] TLR 131, and the Court held that the requirement is for the trial Magistrate to Inquire into the circumstances leading to the taking o f the Statement. It has been amplified further in the Case o f Emm anuel Joseph @ Gigi Marwa Mwita. Court o f Appeal o f Tanzania Criminal Appeal No. 57 o f 2002 (M wanza Registry ), unreported. That. “In order to furnish a Plausible explanation to this Complaint, we think it is necessary to examine closely the Circumstances in which the Statements were taken. In doing that it is to be observed at the outset that unlike the practice applicable in the High Court, where a trial within a trial is held in order to establish the voluntariness o f a disputed Statement in the Subordinate courts, no such practice is applicable. In that Case, where a situation arises say, in the District Court as happened in this case, an enquiry on voluntariness or otherwise o f the Statement can be ascertained from the evidence on the record and what the trial magistrate did at the trial.” In my view, a magistrate does not have to have witnesses to prove that the repugned Statement was voluntarily made, and there is no room for the trial Magistrate to refuse the admission o f the Cautioned statement in Court, before finalization o f the trial, and hearing o f the accused in case he enters his defence. In the case at hand, the correct procedure was followed by the trial Court, and the trial court reached a correct Conclusion that both exhibit “P I ”, “P2” and “P3” were voluntarily made. The only issue here, is whether, the learned trial Resident Magistrate, having warned h im self on the danger o f Convicting the appellants on uncorroborated retracted Confessions was justified in convicting the appellants. In Tuwam oi v. U ganda [1967] E.A. 84, at p.91 the Court held that. “In assessing a (retracted) confession the main consideration at this stage will be, is it true? and if the Confession is the only evidence against an accused then the court m ust decide whether the accused has correctly related what happened and w hether the Statement establishes his guilty with that degree o f certainty required in criminal case.” The learned trial Resident Magistrate as said earlier was very much alert on the requirement o f the law, and stated “In view o f the reasons stated herein, and in view o f the authority cited above it is apparent that the prosecutions evidence is so strong to warrant Conviction in respect o f the first and second accused persons.” A part from the above, nowhere in the record is shown that the learned trial Resident Magistrate had Scrutinized the Cautioned Statements, and e x tr a - ju d ic ia l statements and tested their truth. I have exam ined the statements. They are general Statements referring to Several Criminal incidents allegedly Com mitted by the appellants and others, including the case under consideration. A part from the latter, none o f the Criminal incidents from the Litany o f incidents mentioned in Statements were tested o f their truth. In exhibit “P I ” , the learned Honorary District Magistrate acting as a Justice o f the Peace recorded eighteen (18) Criminal incidents involving the first appellant. It is very curious, and In my view I d o n ’t think that is a proper procedure o f recording an extra - judicial statement o f an accused person. Although a Justice o f a Peace is prohibited from interfering with the flow o f the statement o f an accused person. I think that he is not precluded from asking the accused person to narrate on the particular case which he had been arrested and was confessing, rather than covering a wide range o f incidents, some o f which the accused person has not been charged with. It is for the above reasons that I hold that the truth o f the appellants were not Confirmed. There was therefore a need o f evidence to Corroborate the evidence o f the appellants. This evidence was lacking it follows therefore that the appellants were convicted on insufficient evidence, and their convictions cannot be allowed to stand. I therefore quash their Convictions, and set a side the sentences o f imprisonment imposed on them. It is directed that the appellants shall be released forthwith from prison unless held therein on other lawful charges. Appeals allowed. Order accordingly.