Jonse vs Republic DC criminal Appeal No

IN THE HIGH COURT OF TANZANIA AT I'fflEYA A 1 I E L W I E JUTilSLI C H O N (Mbeya Registry) DC* CRIMINAL Ai-PEAL NO, 118 lF 2004 (Criminal Criminal Case No. k6k of 2003 of the Id strict Court of Mbeya) JCNbE MUAISUT40 ........ ............... ^J P ELIAN T VERSUS THE ilEI UBLI C ............. REoPONLMT HACIQiNJA^ jJ# Jonse Mwoisumo was convicted of rape c/e 130 and 13"! of the Penal Cede as emended by the Sexual Offences (Special Provisions) Actf 199^« The only direct evidence there is in this matter is that of the complainant, Kadi ja Yusuph (PW,'}) who v/as said to be 13 years old on the day she gave evidence. According to that evidence it was alleged that the appvillcmt, who <jhose to say nothing in his .defence, overpowered PW,1 asshe was returning hone , fell her down fa«e. upwards sud raped. her^ The record also shows that the evidence, was ta^en open. court without voir ciiro^ which necessary was at 13 y e ^ s th£ ^inplainani was o£ tender age, Nov;, rp-rHjivjrili evidence in. open court in trial relating- to a sexual offence contravenes the clear provisions of section 24 (3) of the Crimi­ nal Procedure ^9^5# &s amended by the Sexual Offences CSpecial Irovisions) ^ct, 1998* These provisions impose a mandatory procedure which the trial court was required to ab.ide by. It provides thuss~ (3) Notwithstanding the provisions of any other law, the evidence of all persons in all trials involving sexual offences shall be received by the court in camera, and the evide"' "■ e and witnesses involved in these proceedings shall not be published by or in any newspaper or other media, but this subsection shall not prohibit the printing or publishing of any matter in a bona fide series of lav; reports or in any newspaper or periodical of a technical character bona fide intended for circulation among members of the legal or medical professions*,55 A proceeding, the conduct of which contravenes mandatory statutory provisions, is by all means a nullity0 In convicting the appellant the trial court found as a fact that the evidence of Jr'W01 was corroborated by that of IW«,2 and that FW.2 said was that 1 W 01 complained to her that she (PW.1) had been raped disclose by the appellant. I n that capacity she did not ^ the original source of the evidence which she gave* Thus that evidence cannot be said to have corroborated that of FVJ.1* And it was FW.2 who told 1-W.3 that the complainant had been raped by the appellantc Clearly the evidence of irWo3 is pure hearsay© This, of course, does not mean that a court cannot convict on the sole testimony of a child of tender age who was the victim of the crime® But in order to do sc., the trial court must first comply with the provisions of section 127 (7) of the Evidence Act, as amended by the Sexual Offences (Special Provisions) Act, 199So Under these provisions the court may proceed to convict the accused on the strength of the uncorroborated evidence of a child of tender years if, for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years •<,« is telling nothing but the trutho" The learned trial liesident Magistrate did not comply with the above provisions presumably because he believed their was corroborative evidence# Mr„ Mwenda, learned State Attorney, submitted that the iiepublic has no desire to support the conviction on two grounds* He submitted that the trial suffers from serious irregularities, which include the court’ s failure conduct the requisite vo.i.^_J-\i.reQ vftthout this having done there was no way the trial court could know that PV/«1, a child of tender years, knew the meaning of an oath and the effect of not telling the truth in court, Mr* Mwenda, learned otate Attorney, has pointed out that tV/,1 said that one No eras, saw the appellant raping her* I f that claim was true* one would have expected that the said Hegma would have tosti** fied. As if to compound an already w^ak prosecution ca.se t the delay in arresting the appellant was not explained awayf This is a matter of -^nrifcam becaus*. he.JLiv^s in the some village but vcis •arrested after a period of about six days from the date of th© grime% Upon the foregoing observations the appeal is allowed*. The convic- 4*= auoslifcd and the as^rl^ The accused j.s sot free, save that he may remain in custody on of som£. other Xagall y acceptable grounds ^ --- iJeliveredo /o'/ \ S- hi f n4 A J# M. MACKANJA if * ™ I JUDGE \\y \ • ^ a 14/V2005 .appellants In Person Mr* Momburi, S.As For L>->Pel- Certified true copy of the original0 DISTINCT I STRAR MBSYa