20040909 TZCA Dar es Salaam

- I . L G ~ - l IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: LUBUVA, J.A., MROSO, J.A., And KAJI, J.A.) CRIMINAL APPEAL NO. 111 OF 2002 BETWEEN JACKSON DAUDI .............................................APPELLANT AND THEREPUBLIC ...........................................RESPONDENT (Appeal from the conviction of the High Court of Tanzania atTabora) (Lukelelwa, 3.) dated the 24th day of June, 2002 in Criminal Sessions Case No. 9 of 1994 JUDGMENT MROSO, J.A.: The appellant Jackson. s/o Daudi was convicted of murdr c/s 196 of the Penal Code by the High Court, LukeleiWa, J., sitting at Tabora. He was given the usual mandatory death sentence. He was aggrieved by the conviction and sentence and has appealed to this Court. Galati Law Chambers Advocates of Mwanza filed a three ground memorandum of appeal for the appellant At the hearing of the appeal he was represented by Mr. Mwantembe of Galati Law Chambers and the respondent Republic was represented by Mr. 2 Mbago,.learned Principal State Attorney. Mr. Mwantembe sought and obtained leave of the Court to argue an additional ground of appeal. In the now four grounds of appeal the complaints are that the trial judge erred in law and fact in ruling that an extra-judicial statement - Exhibit 'B', which the appellant made to a justice of the peace was free and voluntary. Further, that the trial judge erred in basing a conviction of the appellant on Exhibit 'B' which had been retracted, but corroborated only by circumstantial evidence. The third complaint, which was later abandoned, is that the required standard of proof was not attained by the prosecution and, finally, that at any rate, during the preliminary hearing Exhibit 'B' was not listed as one of the exhibits on which the prosecution would rely. Before we discuss the grounds of appeal it will be appropriate to give a summary of the evidence which was before the trial court. Originally at the trial, there were four accused persons. The appellant was the first accused, followed by one Seleman s/o Ibrahim who was a brother of the deceased. The third and fourth accused persons were sons of the deceased. It was given by the prosecution at the trial that the original second, third and fourth accused persons / / had a misunderstanding with the deceased and, following from that misunderstanding, those three accused persons decided that the deceased should be killed. So, they hired the appellant to carry out the killing. On 9/1/1991 the deceased took his cattle to the pastures to graze. The appellant was informed that that was the opportune occasion to kill the deceased. The appellant borrowed from one Penseli Maganga (PW2) a locally made gun, a "gobore",. which had three bullets. He went to the pastures and spotted the deceased sitting on a log of wood while he grazed his cattle. He aimed and killed him. On the following day the accused returned the gun to Penseli (PW2). In due course news about the murder reached the police. Several suspects were arrested who included the appellant and the original three other accused persons. The police took the appellant to a justice of the peace, one Timothy Sichilirna (PW5), who was a Primary Court Magistrate, to record a statement. The statement Which the justice of the peace took from the appellant was tendered in evidence as Exhibit 'B', following a trial-within-a-trial on its admissibility. El The extra-judicial statement contained a confession to murder. However, during his defence at trial the appellant denied that he had been approached by anyone who asked him to kill the deceased. He denied killing the deceased. He agreed to have borrowed a gun from .PW2 but that he hunted game with it and subsequently returned it to the owner. After he was arrested by the police and he denied killing the deceased, the police fell him down, tortured and forced him to confess that he had mUrdered the deceased. It was then the police took him to the justice of the peace and they required him to make a similar confession to the justice of the peace; When. he was before the justice of the peace he complied with the police order and made a confession of the offence to him to save his life. He said he "coined" a confession story. It is now opportune for us to discuss the grounds of appeal in the order they were argued before us. Mr. Mwantembe started with the fourth ground of appeal, that the trial judge ought not to have admitted the confession statement - Exhibit 'B'. He said that, in the first place, the exhibit had not been listed as a prosecution exhibit during the preliminary hearing and,. 5 further, thatthere was no notice that the extra-judicial statement would be produced at the trial as evidence. So, when the extra- judicia' statement was produced for the first time at the trial that was irregular. He invited the Court to disregard that evidence. He argud that by admitting the statement in the course of the trial the tra- cOntravened GN No. 192 of 1988, Rule 4 of the Accelerated Trial and Disposal of Cases Rules, 1988. He submitted that failure by the prosecution to comply with the mandatory provisions of Section 192 of the Criminal Procedure Act, 1985 and with Rules 4 and 6 of G.N. No. 192 of 1988 which were made under the said section, entitled the appellant to be acquitted. He cited a decision of this Court in Bahati Masebu. v. R Criminal Appeal No. 135 of 1991, (unreported) as supporting his submission. It would appear indeed that Exh. 'B' as such was not produced or referred to during the preliminary hearing. It was mentioned, however, that the appellant was taken before a justice of the peace to whom he made a confession. The actual words which were stated by the State Attorney were as follows - The first accused was arrested and before the Justice of the Peace he confessed to have t 6 killed the deceased after being hired to do so by the 2nd 3rd and 4th accused persons. The question therefore is whether the non-production and listing at the preliminary hearing of the written statement, Exhibit 'B', in which the confession was contained precluded the prosecution from producing it at the trial. The main purpose of a preliminary hearing under section 192 of the Criminal Procedure Act, 1985 and of the Rules - G.N. No. 192 of 1988 - made under it, is to speed up the trial; and an ancillary purpose is to reduce the costs of a criminal trial. Both purposes are served by ascertaining at the earliest stage in the proceedings the matters which are not in dispute. Once those are ascertained then only the evidence on the disputed matters will be called at the trial. There would be no need to caJi witnesses or other evidence to prove that which is agreed to be undisputed. In the case under appeal the extra-judicial statement which contained the confession that was made before the justice of the peace could have been produced and listed as an exhibit at the preliminary hearing but since the appellant did not accept the V. S confession as true, it was obvious the truth of the confession was a / matter which the prosecution was to prove at the trial. It was legitimate, therefore, for the prosecution to produce Exhibit 'B' during the trial and no prejudice to the appellant resulted from that procedure. The case of Bahati Masëbu which Mr. Mwantembe cited to us was to the effect that Rules 4 and 6 of G.N. No. 192 of 1988 were compulsory. We will also cite those rules for ease of reference. They read as follows - The person prosecuting shall, in every trial under these Rules, prepare as clearly as possible, the facts of the case which shall be read to the accused and explained in a language he can understand; ... ... not relevant. When the facts of the case are read and explained to the accused, the court shall ask him to state which of those facts he admits and the trial magistrate or judge shall record the same. It was said in that case about those rules - r, We desire to make four brief observations about these rules. First, there can hardly be any doubt that they are couched in mandatory terms. Secondly, we consider that in that context "the facts of the case" include the materials contained in documents like extra- judicial statements, autopsy reports and sketch plans. Thirdly, it is thus essential that the materials in such documents also be explained to the accused. We observe that neither section 192 of the Criminal Procedure Act, 1982 nor Rules 4 and 6 of G.N. No. 192 of 1988 or the observations of this Court in the case of Bahati Masebu supra require that documents containing evidence which is disputed by'an accused person during a preliminary hearing, has to be produced at the preliminary hearing and listed as an exhibit to be tendered at the trial. What this Court said in Bahati Masebu was that "materials contained in documents" (our underscoring), not necessarily the documents themselves, are also to be "exjlained" to the accused (our underscoring again). It is the non-compliance with such requirements that this Court said "may result into quashing. of V convictions or appeals". We can find no merit in this complaint and wé dismiss it. In arguing the second ground of appeal (which was the original first ground of appeal) Mr. Mwantembe contended that the evidence given during the trial-within-a-trial regarding the extra-judicial statement to the Justice of the Peace showed that the confession was not voluntary. Therefore, the statement ought not to have been admitted into evidence. In that regard he cited the case of Tuwamoi v. Uganda [1967] E.A. 84. Secondly, that the Justice of the Peace did not follow properly the Guide for Justices of the Peace assigned to District Courts or the mode of taking extra-judIcial tements. It was his view that the Guide followed the Judes He cited the case of Nayinda s/ o Botungwa v. R [1959] - .A. 688 in which the East African Court of Appeal held that failure to Dmply with the Judges' Rules when taking a statement from a soner would usually result in the rejection of the statement as idence. The case of Hatibu Gandhi v. Republic [1996] TLR 12 s also cited in support of the argument that failure by a justice of peace to comply fully with the Chief Justice's Instructions would the extra-judicial statement inadmissible. 10 Still in the extra-judicial statement, Mr. Mwantembe further contended that the trial court should not have found that the confession was voluntary because the appellant had not, at any rate, expressed any wish to any one that he wanted to make a statement justifying the action of the police to take him -to a justice of the peace. -s We wish to start with the last complaint. Item number 6 of the Guide for Justices of the Peace assigned to District Courts says - A prisoner wishing to make a statement may be brought to the office of a justice under police escort and usually bearing a letter from the Officer-in-Charge, Police to the effect that the accused ... wishes to make a voluntary statement to a magistrate/Justice. According to Timothy Sichilima (PW5), the Justice of the Peace, when the appellant was brought to his office (together with other suspects) he was told by the escorting police officer that the suspects were facing a murder charge and that they "needed to have their confessions taken." The appellant on the other hand said that after the police had extracted an induced confession from him they told rr.. him he would be taken to court where he was expected to say the same thing as he had told the police. The police escort, apparently 11 PW3 - P.C. Boniface, according to the Justice of the Peace, said nothing in his evidence about taking the appellant to a justice of the peace. We can accept appellant's word that he was simply taken to the justice of the peace because the police had decided so, for their own reasons. There is no question of him, therefore, expressing a wish to make a statement to a justice of the peace. Did the justice of the peace fully comply with the Chief Justice's Instructions, that is to say, the Guide for Justices of the Peace, before taking the statement from the appellant? The Guide provides that before a statement is recorded from a prisoner he is informed that he is before a Justice and asked if he wishes to say anything and that if the prisoner says "no", that will be the end of the appearance. The prisoner will have to be returned to police custody at once. This, we think, underscores the point that a prisoner (suspect) must, himself, express a wish to make a statement to a justice of the peace; that a justice of the peace must not proceed further with the prisoner unless he is satisfied of that wish by the prisoner. t 12 The justice of the peace did not clearly indicate if he. asked the relevant question before proceeding to examine the body of the appellant. However, in the course of his evidence the justice of the peace' appears to have spoken to the appellant and made him appreciate that he was free to. make a statement to him, even though his style of achieving that assurance could have been better. The following is an excerpt of what the justice of the peace, ,said to the appellant - I told him that he was free to say anything or not to say anything, and I asked him whether he had been threatened or promised anything if he can make a confession. I told him that his statement may be used in court during his trial. The accused admitted that he was a free agent and he was ready to give me the facts of what happened. I was satisfied that the accused had vo!untarily confessed the offence in my presence., c 13 The justice of the peace appreciated that if the appellant had indicated unwillingness to give a statement he would have returned him to the police. When the justice of the peace examined the body of the appellant he saw bruises on his hands which had been caused by ropes which were used to tie up the hands. That had happened before the appellant was put under pOlice custody. The appellant did not tell the justice of the peace that the police tortured him during the days (about 10) which he spent in their custody. The appellant on the other hand told the trial court during the trial-within-a-trial that the police had tied up his hands on his back, called for pliers and threatened to castrate him. Out of fear of torture, he made the confession. No actual violence appears to have been meted on the appellant by the police before taking him to the justice of the peace. From the foregoing we can see no cogent reason, therefore, why the appellant would have to make a confession Ao the justice involuntarily, as contended by Mr. Mwantembe. We think that on the whole the trial judge was entitled to rule that the confession was free and voluntary. U 14 The cases of Nanyinda s/o Botungwa and Hatibu Gandhi which Mr. Mwantembe cited emphasise the principle that the Judges' Rules although they should be complied with by police officers for whom, they were made, they were nevertheless administrative rules and that breach of them does not automatically result in the rejection of a statement. As we already indicated in the present appeal there was substantial compliance by the justice of the peace with the Guide for Justices of the Peace, which are also administrative, and there was no compelling reason for excluding the statement from the evidence at the trial. The confession by the appellant was retracted. Mr. Mwantembe thinks that it was •corroborated by circumstantial evidence but he argues that such circumstantial evidence was inadequate and did not exclude other possibilities. But Mr. Mbago looks at the circumstantial evidence differently. He contends that it was cogent. According to him, 'PW1 saw the appellant in the area where deceased was killed soon after the killing and that the post- mortem report showed the dead body had three wounds which was 15 consistent with the fact that the gun the appellant used was loaded with three bullets. We think that the circumstantial evidence which was considered by the trial judge to have corroborated the retracted confession was no corroboration at all. To begin with, according to P.W1 Mwajuma Athumani, she heard "a gunshot" while in her shamba. If the appellant had fired three bullets from the "gobore" causing three wounds in different parts of the body of the deceased, PW1 should have heard three gunshots, not "a gunshot." Secondly, PWI did not see the appellant shooting. She said that when on her way home she saw the appellant standing behind a tree and looked at him. She remained "for a long time, about two hours", looking at the man who she said was the appellant. She did not even know first hand if it Was that man who had fired the gunshot. It was her son, Mtumwa, who told her so. But Mtumwa did not give evidence at the trial. Neither PW1 nor Mtumwa appears to have accompanied the villagers when they went to pick up the dead body. So, there is no evidence that the dead body was found near the place or within the area where the appellant was seen by PW1. Furthermore, according to the extra-judicial statement Exhibit 'B'; as soon as the deceased. 16 dropped down after being shot at the appellant ran to his home - "marehemu alianguka chini na mimi nilikimbia kurudi nyumbani." This statement materially conflicts with the evidence of PW1 that the appellant remained where she saw him for about two hours. There is another important discrepancy between the Exhibit 'B' and PW1's evidence. In Exhibit 'B" the appellant said that the woman who identified him at an identification parade (PW1) together with her son, presumably Mtumwa, had seen him as he was shooting the deceased in the bush. But, as already mentioned, PW1 never said she saw the appellant shooting at the deceased. It would appear, therefore, that if PW1 was telling the truth, the extra-judicial statement did not contain the truth and PW1 did not at all corroborate the confession in Exhibit 'B'. A court can act on uncorroborated, retracted confession and convict if it believes that the confession cannot but be true, provided it warns itself of the danger of acting on uncorroborated evidence. See Tuwamoi v. Uganda [1967] EA 84 and Hatibu Gandhi v. Republic [1996] TLR 12. The appeal before us is not such a case. There is reason, as demonstrated above, to believe that the retracted 17 confession may well be untrue. It would be dangerous to sustain a conviction which is based on such a shaky confession. We feel constrained to allow the appeal by quashing the conviction of the appellant for the offence of murder and set aside the death sentence. The appellant is to be set free forthwith unless he is held for some other lawful cause. DATED at DAft ES SALAAM this yth day of September, 2004. D. Z. LUBUVA P 40 JUSTICE OF APPEAL J. A. MROSO ffl / JUSTICE OF APPEAL ; r#/ '-' • 7 - ...------.- S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy,,c5f)the original. 01 (S. MOMANYIKA) )EPJEfY REGISTRA