Frank Benson vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CR. APP. NO. 135 OF 2004 (From Mbeya District Court at Mbeya Original Criminal case No. 167/2004) FRANK B E N SO N ......................... APPELLANT VERSUS THE R E PU B L IC .............. RESPONDENT JUDGMENT MREMA J. Frank Benson, in this judgment referred to as the appellant, was the accused in the Distinct court of Mbeya, at Mbeya, whereat he was charged with and convicted of the offence of rape c/ss 130 & 131 of the Penal code, cap 16 of the laws. He was sentenced to thirty (3) years imprisonment and twelve (12) strokes of the cane. He is aggrieved wit both conviction an sentence, hence the present appeal. The back-ground of the case, inbrief, is that the appellant (accused) was the house attendant o f one M .J.Gombe the latter being the father of the girl MBONI d/o GOMBA, the alleged victim of rape. Mboni (PW4), on the material date when she was allegedly raped (i.e. 27.03.2004), was a primary five girl and, according to her, she was aged 11 years. The trial court was told by PW4 that on the material date she returned from school, at about 16:00 p.m. Present at home were her younger sister Sophia (aged 8) and the appellant. As PW4 was preparing to go to rest in her room, the appellant followed her therein and asked her to go to rest in his room. PW4 refused. The appellant then gave PW4 shs. 500/= to induce her to agree to have sexual intercourse with her, but PW4 continued to refuse; upon that refusal, l PW4 grabbed her by force, undressed her under underpant and then raped her. The illicit sex took place on PW4’s own bedroom. After the appellant satisfied his lust PW4 went to school for tuition. PW 4’s parents (father and mother) were away on Safari. On the next day the parents returned and PW4 narrated the bitter episode to them. They took her to police station. She was referred to hospital under a PF3. Meanwhile the appellant was arrested and taken to police station. PW4 further told the court that it was not the first time she had sexual intercourse with the appellant; according to her, that was a third incident. It is also her statement that on the previous incidents the appellant did not give her any money. The results or remarks on the PF3 (exh. PI) do not seem to support physical and violent penetration per virgina, in that no spermatozoa were detected, nor was the victim’s hymen found intact____ as she had lost her verginity. According to the medical expert, “ no evidence o f sexual abuse”. This would mean that the girl, though of tender years, was not found with injuries or bruises in her sexual organ. The Republic/Respondent, through Mr. Boniface, is not supporting conviction and consequently the sentence. With respect, I share the same views on the following reasons. I would start with the testimony o f the complainant (PW4). The learned trial Magistrate having accepted the age of the victim child as 11 years, it then became his burden duty to comply with the provision o f section 127 of the Evidence Act, 1967. Subsection (1) o f section 1'27 provides an implicit explanation to the effect that “all person shall be competent to testify,” except on the following circumstances: (1) those person prevented from doing so by not understanding the questions put to them; or (ii) by not giving rational answers to the questions put to him or her; or (iii) by reason of tender age; or (iv) extreme old age; or (v) due to disease, whether of body or mind, or any other similar cause. Subsection (2) o f section 127 of the evidence Act, 1967, makes the following provision: “ 127-(2) where in any criminal cause or matter any child of tender years called as a witness does not, in the openion of the court, understand the nature of oath, his evidence may be received though not given upon oath or affirmation, if in the openion o f the court, to be recorded in the proceedings, he is possessed o f sufficient intelligence to justify the reception of his evidence, and understand the duty o f speaking the truth.”. From the above cited law, it is needless to emphasis that the enactment cited above did not just shoot out like mushroom. It must have germinated from the long standing rule of practice which is to the effect that as a matter of predence, the evidence of a child of tender years requires corroboration before it can be acted upon. But it must be born in mind, in my judgement, that there are two cardinal principles under operation o f section 127 of the Tanzanian Evidence Act, 1967 which a trial court has to look at. These are: (a) Sworn evidence of a child o f tender years; and, (b) unsworn evidence of a child of tender years. These two requirements can be put into play only if and when the trial court conducts VOIR DIRE EXAMINATION on the witness child of tender years before the reception o f his on her evidence in order to determine the following essential aspects: (1) whether the child possesses sufficient intelligence to justify reception of his or her evidence, also whether he/she understands the duty of speaking the truth; (ii) whether he or she understands the nature of oath. If the trial court is satisfied in (I) but it is of the openion that the witness child does not know the nature of oath, the court may proceed to record his or her testimony, though without oath or affirmation, provided that it is put in writing in the proceedings all the findings by the trial Magistate relating to that VOIR DIRE Examination on the witness. In the case of SHOZI ANDREW V.R. [1987] T.L.R, 68,the Tanzania Court of Appeal, after referring to section 127 - (2) of the Evidence Act, observed at page 70, as follows: “In our view, in terms o f the above provisions, the sworn testimony of a child of tender years does not need corroboration. It can be treated as any other sworn testimony” But the dilemma that gripped the instant proceedings is that the trial Magistrate did not conduct VOIR DIRE so as to ascertain as whether PW4 understood the nature of oath she was caused to administer; also whether she possessed sufficient intelligence to understand the questions to be put across to her, and also whether she knew the duty of speaking the truth. In the absence of these legal requirements it is difficult to place any valuable weight on PW 4’s testimony. One cannot tell whether PW4 knew the nature of oath she administered, so it is hard to categorize her evidence as one administered under oath. It is also hard to place any useful credence to such testimony because there is nothing in the evident proceedings to justify the trial court, also this court, to believe that the witness - child knew the duty of speaking the truth. Since PW 4’s is the king-pin upon which the whole accusation against the appellant is centred, the trial Magistrate should not have blindfolded his eyes against the operation of section 127 of the Evidence Act, 1967. Be that as it may, notwithstanding the fact that the Magistrate, with respect, callously disregarded the procedure requiring him to hold Voir dire on PW4, the evidence of PW4 cannot totally be declared invalid. PW4 testified at the age o f 11 years and was in STD V. The circumstances of this case are distinguishable from those obtaining in the case o f SAID HEMED V.REPUBLIC [1987] T.L.R, 117. In the latter case (HEMED’S) the court of Appeal of Tanzania considered evidence of a child aged 6 years when the incident took place but gave evidence at the age of 9 years. In assessing his evidence, the court o f Appeal observed at page 120 as follows; interslia: “In our considered opinion Mr. Kavuta’s contention about P W l’s intelligence is not without some basic. In actual fact contention squares with our own analysis and assessment. As observed above, PW1 was aged between 5 and 6 years at the time of killing. He came to give evidence in the High court four years after the event when he had attained the age o f 9 or 10 years. He was then schooling in std III. But this is the child who told the court that he did not know the names of his parents, and that he was not aware of the fact that his sister Esta died. We are amazed. In our judgment we are not satisfied that PW1 was possessed of sufficient intelligence. We therefore entertain serious misgivings about his collection of the event”. Contrary to the exposition of PW1 in SAID HEMED’S case (Supra), PW4 in the instant case, although she was not examined as to her mental status, nevertheless her evidence on record is self explanatory, in that, it is coherent, lucid, short and comprehensively clear. On that score, I am satisfied that the appellant understood the nature and material facts of PW 4’s evidence, although the same cannot be assessed on the same footing as the evidence given by a witness who is expected to know the meaning of oath and the duty to speak the truth. I would, therefore, prefer to categorize PW4’s testimony as that of a witness who testified without oath or affirmation. The position of the law as it is now in our country regarding a child witness is that where evidence given is unsworn, corroboration is necessary: but where the evidence is sworn, corroboration is not necessary. This proposition is pegged on the authority o f SHOZI ANDREW [1987] T.L.R, at page for, wherein the court of Appeal had this to say, referring to English Authority: “ It is interesting to contrast this new development in our law with that in England regarding child witnesses. In Archibold Criminal Pleading and Practice 40th Edition para 1431 and para 1432 and para 1433 (sic) deal with corroboration of children’s evidence. Briefly if evidence is given unsworn, corroboration is necessary as a matter of law. Where however evidence is sworn (in which case although the evidence need not be corroborated as a matter of law) the jury should be warned of the danger of acting on uncorroborated evidence. They may convict on such evidence, if bearing the warning in mind, they are none the less convinced that the witness is telling the truth. In so far as this appeal is concerned we are satisfied that the evidence o f PW1 did not need corroboration and that it could form the basis of a conviction. In answer to the question of law posed by the High court, we think that sworn evidence of a child does not need corroboration and the unsworn evidence of a child is governed by the provisions of section 127 (3) o the Evidence Act as regards corroboration”. In terms of subsection (3) of section 127 of the Evidence Act, 1967, where evidence is received by virtue of subsection (2) o f section 127 in support of the case for prosecution, but which evidence is not corroborated by any material evidence in support of it implicating the accused, the trial court may act on that evidence and convict the accused, if the court has only warned itself not only of the danger of doing so but also if it is fully satisfied that the child is telling nothing but the truth. In the instant proceedings the learned trial Magistrate sought to rely on the appellant’s confession. I have gone through the evidence of PW1, PW2, PW3, PW4 and PW5 quite carefully and noted that none of these witnesses ever tendered any document purporting to be the appellant’s confession. At most it was PW1 and the police witness (PW5) who told the trial court that the appellant, upon interrogation, admitted to them that he raped PW4. I have examined quite carefully the testimony of PW1 and I have a serious misgiving about his testimony. According to him, he told the trial court that on a date he would not remember, but in March, 2004 at about 23.00 hours, he was approached by one Remember s/o Mwasyobe whom he said he had left for Uganda and requested PW 1 to accompany him to the home of one Joel. Upon reaching there they found Joel Gomba and the accused (appellant), and that the appellant was bleeding. The witness said that the appellant was being accused of raping one MBONYE JOEL, and that upon interrogation the appellant admitted to have raped Mbonye Joel. As who is Mbonye Joel, the evidence is silent. The victim of rape as per the charge sheet is MBONI D/O GOMBA. In the absence of explanation as who is Mbonye Joel, that raises doubt as who was really raped by D W 1. It is not also explained as why one Remember Mwasyoba was to request PW1 to accompany him to the home of Joel. It was not also explained as to why the appellant was bleeding. The testimony of PW1, however, helps to corroborate D W l’s testimony that he was assaulted by PW4’s parents to force him to admit that he raped their daughter (PW4). The alleged confession could not therefore be said to have been obtained from DW1 voluntarily and as such it is unsafe to rely on such evidence without corroboration. It is the appellant’s evidence that PW3, the mother of PW4, had grudges with him (DW1). The reason he gave is that PW 3’s husband, one Joel employed the appellant as his welder. This act of employing him annoyed PW3 because her relatives were sacked from the job by PW3’s husband. He admitted that he was first employed to sell ice cream before PW3’s husband changed him to work for him as welder. As there is no evidence from the prosecution to challenge the appellant’s defence, I find the accused’s evidence to be capable of being reasonably true and thus capable of injecting reasonable doubt against the case for prosecution. But that is not the end of the matter. The learned trial Magistrate did not also comply with the Children and Young Person Ordinance, cap 13, as amended by the Sexual Offences Provisions Act, 1998. The new subsection (5) of section 3 o f the children and youngs person ordinance, cap 13, is couched in the following terms: “(5) Where a child of less than eighteen years of age is a witness, a victim, an accused or a co-accused in a case involving a sexual offence, the child shall be tried in camera and separately from the adult co-accused, or the evidence of the child shall be adduced in proceedings conducted in camera” (emphasis supplied). It cannot be said otherwise that the cited provision above is couched in mandatory terms and there is not any room made available to a trial court to exercise its discretion to conduct criminal proceedings involving allegations of rape against a child in open court. It has been emphasized time and again by this court that the main reason for such enactment of the law is, inter alia, to further safeguard the personal integrity, dignity, liberty and security for children. The new law, I am inclined to believe, is aimed at creating a more conducive environment to victims of rape, especially children, and women witnesses to feel relaxed, free and stable when giving evidence in the witness’s dock. It is needless to say that in African culture, or even in many parts of the global word, obscene wounds, language, pictures, immoral behaviours, are no doubt offensive or disgusting against accepted norms or moral standards. Protection by the law had therefore to be provided for interest of justice to allow and enable such persons express themselves freely in a closed court (cam era____ not free to all members of the public, but only those concerned with the proceedings). In my considered view, therefore, also as rightly observed by Mr. Daudi Mburi, learned State Attorney, the failure by the Learned trial Magistrate to observe subsection (5) of section 3 of the Young Children and Young Persons Ordinance, cap 13, occasioned a failure of justice. On that score and other observations made in this judgement, I am satisfied and I agree with the learned State Attorney that the way the proceedings were conducted by the trial Magistrate could not lead and reach a justiceable decision. Moreover, PW4’s evidence did not receive any material corroborative evidence; the evidence of PW1, PW2, PW3 and PW5 was not better than hearsay evidence, hence could not supply any corroboration to the evidence of the child (PW 4)_____ whose testimony did not comply with the provisions of section 127 - (7) o f the Evidence Act, 1967 as amended by section 27 of the sexual offences special Provisions Act. No. 4/1998. In the light of the foregoing reasons, the conviction was bad in law, so was the sentence of thirty years imprisonment. In the result, the appeal is hereby allowed, the conviction quashed and the sentence of thirty years imprisonment set aside. The appellant is set free forthwith from the prisons unless he is otherwise lawfully held. A. C. MREMA JUDGE 08/11/2005 At Mbeya, in the presence o f the appellant and in the presence of Mr. Nyenza, Learned State Attorney for the Respondent. A. C. MREMA JUDGE 08/11/2005