20040610 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA ·, AT MBEYA (CORAM: MROSO, J. A., NSEKELA, J. A. AND MSOFFE, J. A.) CRIMINAL APPEAL NO. 103 OF 1999 BETWEEN TULAHIGWA SEKISITE .. ...................................... APPELLANT AND THE -RE-PUBLIC ...................... '!;•··············~··•·-•········• RESPONDENT. (Appeal from the Judgment of the High Court of Tanzania at Iringa) (Mkwawa, J.) dated the 31 st day of March, 1999 1n Criminal Sessions Case No. 86 of 1993 JUDGMENT .. ·"-. OF THE COURT ======================-= NSEKELA, J. A.: The deceased, Isihaka Saha·ra, was apparently murdered on or about the 9.10.1992 at Chilowe Village, Njombe District, by · Erasto Sahara, Tulahigwa Sekisite and John .Sadani Kiyeyewu, who were the first, second and third accused persons respectively during . . .· ,. . .· . . . . . . . . ·. -: . .. the trial in .the High .Court John Sadani Kiyeyewu ·died during the · · cours~ of the trial. The first accused was acquitted by the trial Court · . . but the s~cond accused, now the appellant, was convicted and sentenced to suffer death by hanging. From· that. decision, the · -appellant has lodged this appeal. The essence of the prosecution case was to the effect that the :deceased, a husband . of five wives including . PWl, Mauricia Sejombe and the appellant, was hacked with an axe by the third accused John Kiyeyewu while in PWl's house. The said Kiyeyewu arrived at PWl's house shortly after the departure of the appellant who had been :there attending to a sick child. The ·evidence implicating the •. •!>• appellant was a cautioned statement she made to PW2 B. 9516 Sgt. John and circumstantial evidence which the trial judge was able to marshal as corroborating the cautioned statement. . · 3 Mr. Mwakolo, learned advocate for the appellant, filed three grounds of appeal. The main complaint revolved a·~ound the_ .· . . . . . . . . . . cautioned statement, exhibiLP2 which' the appellant had retracted, .· · . . . . . and the reliability .of the testimony of PWl, one of the wives of the deceased and the only eye witness to the murder .. Mr. Manyanda, . learned State Attorney, did not support the conviction and joined . hands with Mr. Mwakolo in discrediting. the cautioned statement, :and . the evidence of PW .1. We begin with the cautioned statement, exhibit P.2 which was recorded by PW2 B. 9516 Sgt. John in Swahili. The appellant was apparently. not conversant .in Swahili, she spoke Kibena. PW2 was apparently fluent in Kihehe, Kibena and Swahili. During the trial in . the High Court, Mr. Mushokorwa, then lear_ned advocate- for the . •, appellant objected to the admission -of this statement in evidence. First, the. statement was not produced when the· preliminary hearing was conducted, and that the statement was different from the one · which was recorded earlier. Second, the appellant had repudiated the statement in its current form, and lastly, the appellant was 4 . conversant _with Kibena language while the statement is in Swahili and . the . appellant did not have the . services of an. interpreter.· . . ' .. In a nutshell, the, learn.ed advocate submitted that sections . 57(3) · and ·58(3) of the Crim(nal Procedure Act, 1985 were not complied with. ·.· In a reserved Ruling, the trial judge overruled the objections, stating,· inter alia, that - . " ... I would not allow the defence stand to bar. the admission of the cautioned statement perse (sic) and I find a trial within a trial in appropriate, understandably not applied for by the defence". { emphasis supplied} The cautioned statement was then admitted as exhibit P2. Mr. Mwakolo, in. arguing the appeal before us essentially reiterated the arguments made in the trial court that he cautioned statement had been retracted/repudiated; that the appell_ant was not conversant in Swahili and did not have the services of an interpreter and that the ' . , . statement was not read over to her. Mr. Mwakolo added that since 5 exhibit P2 was in fact a co'nfession which had been retracted/repudiated, it was imperative for the trial court to conduct a . . . . . . . ' . . trial •within a trial_. To cap it all, during the preliminary hearing, exhibit P2 did not feature at all and the appellant was not aware bf it. Mr. Manyanda, learned State Attorney, was candid enough to admit that the cautioned statement had been retracted/repudiated and that the trial judge should not have admitted it before conducting a trial within a trial. On the 23.8.1995, Mr. Mushokorwa had opposed the admission of exhibit P.2 basically · because of non-compliance· with the procedural requirements of sections 57(3) and 58(3) of the Criminal Procedure Act, 1985 and that the cautioned statement had been · retracted/repudiated. In Criminal Appeal No. 138 of 1994 between Athuman Rashid v. R. {unreported} this court stated thus - · "The. provisions of sub - section (3) like the other ·provisions of section 57 of the Act are designed to safeguard the rights and interests 6 of persons· . suspected by the . police of .committing criminal offences. · In .particular · . . . . . . . they see~ to ensure that statements allegedly maqe to the police by such suspects are voluntary and free from error,_ and the courts will. always strive to ensure that this object is . achieved". The . correctness of the cautioned statement was undoubtedly . challenged during the trial by Mr. Mushokorwa. It was recorded in Swahili, a language which was allegedly foreign to _the appellant. This means that she did not know its content! Not surprisingly, she repudiated ·it. In . Rash id's case above, the quarrel · with the statement was that it did not have ·a certificate in terms of section . 57(3). The Court continued - "We think that where a cautioned stateme.nt is .objected · to for want of a certificate -as required by sub-section (3) of the Act, what 7 the court should do is to ascertain on the voluntariness and correctness of the . . statement, .usually by holding a trial within·. a trial. If the court is satisfied that · the statement was made voluntarily and was. recorded correctly it should proceed to. admit it in evidence, but if it is not so satisfied then it should accordingly hold it inadmissible". Despite the force.ful protestations from Mr. Mushokorwa, the trial judge decided that a trial within a trial was "inappropriate" and . that the defence had not requested for one. With all due respect to the trial judge; a trial within trial should have been held to establish the correctness of the record.ing of exhibit P2. It is not only the correctness of the cautioned .statement that was in iss_ue, it was retracted/repudiated as well. In terms of section 3 ofthe Evidence . ' . . ·. Act, 1967, the cautioned statement was in fact a confession. This confession was however repudiated by the appellant. We cannot over-emphasize the time - tested procedure that where a confession · 8 . is either retracted or repudiated, a trial within a trial has to. be held . by the court before such· confession is admitted in evidence~ It is the . duty of the court to do so and it is not dependent on an application . . . by the defence as the tria! judge seemed to suggest. (See: (CAT) Criminal Appeal No. 100 of 1995, · (i) Morris Agunga (ii) . Nyombi Mahana (iii). Paulo Luhende @ Mogwa v .. R~ {unreported). Since Mr. Mushokorwa had raised the objection, the proper procedure was for the trial judge to hold a trial within a trial and then rule on the matter. He declined to do so. Under the circumstances, the cautioned statement was admitted in evidence prematurely. The cautioned statement was the anchor of the .prosecution case. It was erroneously admitted and acted upon in convicting the appellant. The trial judge then proceeded to look for pieces of evidence to corroborate it, and concluded - 9 . "On a_ sober appraisal of the facts, which. in · my view afford corroboration to the cautioned statement when weighed 011 the scale as against those advanced in her favour, I am satisfied. beyond per adventure that the only. · reasonable inference to be drawn in the circumstances is the · second accused's complicity . in the killing/murder of the deceased". _· The consequence of our finding that the trial judge erred not to have conducted a trial within a trial, is to disregard the alleged. cautioned statement altogeth_er (exhibit P.2). Having done so, the question of looking around for pieces of evidence to corroborate the cautioned_ statement, does not arise. Once the appellant's cautioned· statement is disregarded or thrown out, then there is nothing to be · corroborated. In the result,. and for the reasons set out above, we allow the. - .· · . . appeal, quash the · conviction and set aside the .sentence.. The ·appellant should be released fgrthwith unless otherwise lawfully. held. DATED at MBEYA this 10th day of June, 2004 .. H. R. NS EKE LA JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original. . . n /) . . S.~uRA· . .. SENIOR DEPUTY REGISTRAR