20060313 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MUNUO, J.A., MSOFFE, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 56 OF 2004 BETWEEN MNYANEZA FRANSWA ••••. I I •••••••••••••••• ~ ••••••••••••••••• APPELLANT AND THE REPUBUC •••• ■ ••• I . I . I •••• ■• I •• I ••• I. ■■• I ••• ■ • • • • • • • • • • • • • RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Bukoba) (Luanda, J.) dated the 6 th day of April, 2004 in Criminal Sessions Case No. 20 of 2000 JUDGMENT O F T H E COlRT ------------------- KAJI, J. A.: This is an appeal from a judgment of the High Court (Luanda,· J.) sitting at Bukoba. The court convicted the appellant, Mnyaneza 2 Franswa, of the murder of his wife Batamuliza w/o Mnyaneza on or around 7,- 8 November, 1995, and sentenced him to death. The facts of the case can briefly be stated as follows:- The appellant is a Mnyarwanda by nationality. In 1995 he was residing in a Refuge Camp at Umukashambya Kyambura Village in Ka ragwe District. In the morning of 9.11.1995, while Obadia Kiiza (P.W. 1) an Office Attendant of Mabira Primary Court, was on duty at the said Primary Court, was approached by the appellant who was panting heavily. ,.. _.. --~,The qppell~o.t t9ld -~Jm __he had ki!led .his wife, and that he_b_ad________,_. . .,__ come to report there to avoid being killed by the villagers. P.W. 1 tied him with ropes and handed him over to the police at Kyabalisa ·Police Station. 3 On 14.11.-1995 Jane Andrew (P.W. 2) a Primary Court Magistrate of Kayanga Primary Court, Karagwe District, and so a Justice of the Peace of Karagwe District Court, recorded an Extra Judicial Statement of the appellant whereby the appellant admitted to have killed the deceased on allegation that the deceased had fallen in love with their neighbour, one Gabriel, and for threatening to kill him, and also for answering him rudely. The talking between the appellant and P.W. 2 was made through an interpreter as the appellant never knew Kiswahili but only Kinyarwanda, · and P.W. 2 knew Kiswahili but not Kinyarwanda. The appellant repudiated the Extra Judicial Statement. A trial within a trial was held and the Extra Judicial Statement was admitted as Exhibit P. 3. In his defence the appellant denied to have killed the deceased. He also ,--- denied --~---. to. have admitted the killing to. anybody. ___ H~_ deni~d .. -····· . . . -·-"' . the contents of the Extra Judicial Statement to be his, and denied to have made any statement to the Justice of the Peace P.W. 2. He denied the signature on the Extra Judicial Statement to be his. He f...".,• -ft_ i'. : " ... .. d 4 denied even to have known the deceased. He· denied almost . everything. He was consequently convicted and sentenced as above. He was aggrieved, hence this appeal. Before.· us the appellant was represented by Mr. Magongo, learned counsel, who had preferred 4 grounds of appeal. However at the hearing he abandoned ground No. 1 and argued ground No. 2, 3 and 4. Arguing ground No. 2 the learned counsel contended that the learned trial judge erred in relying on the memorandum of undisputed facts because the preliminary hearing was not conducted according to the procedure laid down in G.N. No. 192 of 1988. The learned counsel pointed out that, the appellant was not involved and instead_it. \.Xa~.. ,bls_counsel_who_.was involved __ untiL.w.hen...the appellant-. was called on to sign the memorandum of undisputed facts. The learned counsel submitted that, it is the accused, and not his advocate, who is required to say which facts are not disputed. 5 The learned counsel further contended that, the record does · not show that the undisputed facts were read and explained to the . appellant in the ·1anguage understood by him. In his view, the evidence in the preliminary hearing should not have been considered . by the learned trial judge. Arguing ground No. 3 the learned counsel contended that, since the Extra Judicial Statement Exhibit P. 3 was recorded through an interpreter, the interpreter ought to have given evidence; failure of which rendered the extra judicial statement inadmissible under the hearsay rule. In support of this submission the learned counsel cited the decisions in Republic versus Absolume Nakome and Another (1947) EACA 119, and Kashandago Kadochi versus Republic (1953) EACA 174. The learned counsel doubted whether the confession contained in the extra judicial statement is true. He mentioned some areas which he said contradicted with some other evidence. In his view . - ·.. 6 the learned trial judge should not have relied on it in convicting the appellant. Arguing ground No. 4 the learned counsel contended that, the learned trial judge erred in holding that the evidence of P;W. 2 was corroborated by P.W. 1. The learned counsel pointed out that P.W. 1 was not conversant with Kinyarwanda, the language spoken by the appellant, and that in that respect his evidence could not corroborate that of P.W. 2 who was also not conversant with Kinyarwanda. Responding to these submissions Mr. Mrina, learned State Attorney, who represented the respondent Republic, contended that, the appellant's conviction was not solely based on undisputed facts but on the totality of the evidence as highlighted by P.W. 1, P.W. 2 failure of justice occasioned by the procedure adopted at the preliminary hearing because the appellant was represented by an advocate who had stepped into his shoes. c; ., <ii "' 7 The learned State Attorney observed that, the appellant admitted to have killed the deceased when the information was read over to him at the preliminary hearing, but he denied to have done so intentionally. He had admitted similarly before P.W. 1 and P.W.2. The learned State Attorney found nothing wrong with the procedure adopted in conducting the preliminary hearing. As far as the status of the extra judicial statement Exhibit P. 3 is concerned, the learned State Attorney contended that it W9S voluntarily made as held after trial within a trial, and that, the justice of peace P.W. 2 read it over to the appellant who found it to be correct and signed. In that respect it is the learned State Attorney's contention that, there was no necessity of the interpreter giving evidence, and that its contents are nothing but truth, and was In his rejoinder the learned counsel for the appellant insisted that it was necessary for the interpreter to give evidence to confirm b J/ 8 whether the contents in the extra judicial statement are what the appellant said, notwithstanding that he signed thereat. The decision in this case is based on three facts, that is, One, the evidence in the preliminary hearing Two, the evidence of P.W. 1 and P.W. 2 Three, the Extra Judicial Statement Exhibit P. 3. In the preliminary hearing, the following matters were recorded as undisputed, that is, One, that the named deceased is dead and that she died a violent death. Two, the -12G-st-Moterrn Examination Report--ex-l=l~ett:4 P"-cc-,-+1-.- - - - - - - - Three, the sketch map of the scene Exhibit P. 2. Four, that the deceased was married to the accused - both Nyarwandas who migrated to Karagwe District, Kagera Region. ' it1 .. ·- f ' b j' 9 At this juncture we pose and ask: Was the preliminary hearing conducted ir:, accordance ..-. with the provisions of Section 192 of the Criminal Procedure Act, 1985, and G.N. No. 192 of 1988 - the Accelerated Trial and Disposal of Cases Rules, 1988? Mr. Magongo says it was not. Mr. Mrina says it was. We have carefully considered the rival submissions by the learned counsel for the appellant and the learned State Attorney for the respondent Republic. We think, it is now settled that in conducting a preliminary hearing, first, the person prosecuting must prepare, as clearly as possible, the facts of the case which shall be read to the accused and ·~ explained in_ a_ languageJ1e_can .. .understand1-T-bjs_JS-i1+-Compliance with Rule 4 of the Accelerated Trial and Disposal of Cases Rules, 1988. 10 Secondly, when the facts of the case are read and explained to the accused, the court must ask him to state which of those facts he admits, and the trial magistrate or judge shall record the same. This is- ·in compliance with Rule 6 of the Accelerated Trial and Disposal of Cases Rules 1988, and Section 192(3) of the Criminal Procedure Act, 1985. Thereafter, the facts which have been recorded in the memorandum as undisputed, will be deemed to have been duly proved, as provided for under Section 192(4) of the Criminal Procedure Act, 1985. The Court has reiterated this position in a number of cases. See for instance the cases of MT. 7479 Sgt. Benjamin Holela versus Republic (1992) TLR 121, Libert s/o --·---·---····. --·-·-··- .Hubert ......v:ersus .... -Republic;.. - .CriminaL-Case-.. No. 28-of - -1999 {unreported}, and John Kasanza & Paulo Dominick versus Republic, Criminal Case No. 27 of 2001 {unreported}. b _/ 11 Thus the position is clear that it is the accused who is required to say which matters are not in dispute. Also it is mandatory that the contents of the memorandum of undisputed facts must be read and explained to the accused in the language he understands, and the record must show clearly that the contents of the memorandum of undisputed facts have been read over and explained to the accused in the language he understands. In the instant case it is common ground that it was the appellant's counsel who told the court which facts were not in dispute. Obviously this was wrong. The record does not show whether the contents of the memorandum of undisputed facts were read over and explained to . the appellar,_t in the lf=)ng1Jage h~ uridersto.od_be.fore .he ..was..called ..on.. - - · i - - - -·--·- to sign. That being the case, we ask: What is the consequence? The Court had occasion to address a similar issue in Libert s/ o Hubert {supra}where it said:- -cf( If , I 12 ·As it is not shown on .record that the contents of the memorandum were read .over and explained to the appellant, it may well be that it was not done. To resolve the doubt, we discount the evidence pertaining to the post mortem examination report (Exhibit P.1) and the sketch plan (Exhibit P.3). In the instant case we hold the same view. We discount the evidence pertaining to the facts which were recorded in the memorandum as undisputed. These include the assertion that the deceased Batamuliza w/o Mnyaneza is dead, the post mortem examination report Exhibit P. 1 and the sketch plan Exhibit P. 2. _J:lav.ing_~expuoged~the=abo:v~evidenc.e.,-w1;:.-ar-€-l@f:t--W~tl:1-t-he evidence of P.W. 1 and P.W. 2 and the Extra Judicial Statement Exhibit P. 3. It is common ground that P.W. 1 was not conversant with Kinyarwanda, the language which the appellant was speaking. He said that, from the words the appellant told him, he understood to "',-14 13 mean that the appellant had killed his wife, and had surrendered to avoid public wrath. But he said the appellant did not tell him why he had killed his wife. With language problem, we think it would be dangerous to rely on his evidence alone in such a serious case. P.W. 2 had a similar problem. She was not conversant with Kinyarwanda. But unlike P.W. 1 who had no interpreter, P.W. 2 had an interpreter. We will discuss more on this when dealing with the Extra Judicial Statement Exhibit P. 3. We now come to Exhibit P. 3, the Extra Judicial Statement. It is common ground that the appellant's confession was is also common ground that the interpreter did not give evidence at the trial. For that reason Mr. Magongo has contended that, it ought not to have been relied upon in convicting the appellant because, in his view, it is hearsay evidence. 14 Admittedly, this has exercised our minds a great deal. In Absolume Nakome s/ o Mamumi and Namaloba s/ o Naburuku versus Republic (1947) 14 EACA 119, a witness Harwich, a Superintendent of Police, gave evidence that, through double interpretation, he took a voluntary statement from the second appellant. Neither of the two interpreters gave evidence and yet the statement was admitted in evidence. The Court said:- We think it necessary to point out that this was wrong, as all the Superintendent could say was what the second interpreter told him in English - mere hearsay. Both interpreters should have given evidence before the statement could rightly be admitted.____________~ _ Another case we considered is that of Kashandago s/o Kadochi versus Republic (1953) 19 EACA 174. In that case the appellant had admitted killing his mother because of her threats and n l .. . 15 general bad conduct to him. He made an extra judicial statement which amounted to a full confession before a magistrate, Mr. Finch. This statement was produced at the trial by Mr. Finch and the Judge · allowed it to go in as an exhibit although the interpreter, who had translated the- appellant's words into Kiswahili, which was the language used by the appellant, was not called as a witness to testify to the correctness of his translation. The Court said:- In the absence of any evidence by the interpreter of what Mr. Finch had recorded as having been said by the appellant, the statement was merely hearsay and should not have been admitted at all. ----------------------.,--.. -·--· Admittegly, __ these _cases gre_ very old. They weJ:e_d.e_cided before the Evidence Act, 1967 came into existence. It would appear the Evidence Act, 1967 brought some changes in the hearsay rule. We say so because in the case of the Director of Public Prosecutions versus (1) Regina Karantini (2) Theresa b <1 16 Mafumba - Criminal Appeal No. 110 of 1988 {unreported}, a Primary Court Magistrate, as Justice of the Peace, had recorded the respondent's confessions through an interpreter. The respondents spoke in Kisukuma, a language which the primary court magistrate was not fully conversant with. Because of that an interpreter from Kisukuma into Kiswahili and vice versa was used, while the magistrate recorded in English. The learned trial Principal Resident Magistrate (Extended Jurisdiction) was of the view that those confessions were no more than hearsay evidence, since they were not directly recorded by the magistrate from the respondents, but were indirectly recorded through the medium of an interpreter who was not called as a witness. ---·----,- It seems to us that the Principal Resident Magistrate was not aware that under our Evidence Act, 1967 and its precursor, the b 17 Indian Evidence Act, confessions, which are no more than a specie of admissions, constitute one of the established categories of admissible hearsay, which trace their origins to the English law of evidence as applied and modified to suit the local circumstances of India and Tanzania. He also failed to appreciate that what was at issue here was the accuracy of the statements recorded by - the primary court magistrate and not the authenticity of the statements. But later the Court said:- ____________ Obyio_u_sly__tbe evidence of..theJnter,preter,_ ytho was not called to give evidence, was essential to establish the accuracy of the statements, since the magistrate used the interpreter from time to time when he got stuck. That being 18 the case, these confessions before the primary court magistrate, cannot be relied upon unless confirmed by the respondents at the trial. In the instant case the interpreter did not give evidence. The appellant did not confirm the confession. In fact he repudiated it. At first we were attracted by the last part of the extra judicial statement where the magistrate / justice of the peace recorded: Naamini kwamba maelezo ya mtuhumiwa yametolewa kwa hiari yake, mbele yangu na yamesomwa kwake na amekubali kwamba ndivyo alivyoyatoa. Signed: Justice of the Peace. Signed: Interpreter (unofficial translation:- 19 I believe that the suspect has given his statement voluntarily, before me, and it has been read over to him and he has accepted the same to be what he had stated). We thought this was enough to establish the accuracy of the appellant's statement Exhibit P. 3, and that there was no necessity of the interpreter to give evidence. But on reflection, and due to the peculiar nature of the case, we think it was essential that the interpreter should have given evidence to establish the accuracy of Exhibit P. 3 as remarked by the Court in the case of the D.P.P. versus Regina & Another {supra}. ______ :J.,astjy,__w_e_ba~e_note.dJrom_tbeiecord thaLI).JL9_.6..2.0D.O.-Wbe.------ the appellant appeared before the High Court for plea and preliminary hearing there was an interpreter from English into Swahili and vice versa. When the information for murder was read over the appellant was recorded to have pleaded: 20 It is true I killed without intending. Apparently the information was read in English and the interpreter translated-it into Swahili. Since there is evidence that the appellant knew Kinyarwanda only, we doubt whether he pleaded so. So the learned State Attorney's assertion that when the information was read over to him he admitted to have killed the deceased may not be all that right. Since the mandatory requirement of Section 192 of the Criminal Procedure Act, 1985, and G.N. No. 192 of 1988 were not complied with, and since the interpreter did not give evidence, we are of the view that it would be dangerous to uphold the conviction of murder. ,p ~ ,. . . ,. ."" . . . . , In the end result, we ·•,-r;•~-~guash '·. . .... --·· .. ·- .. - . _.,.. ___ ..• .. ·- . . . the co[lviction and set aside. the________________ . ... ,•!"_ ., ,• ~ •• , - . · , - 0,-•• .,.,..... ~ ... ...,,,.,,,. •• ___ ..._~~---- sentence. Due to the gravity of the offence, and for the interest of justice, we direct that the case be heard afresh (de novo) before another judge. 21 It is an old. case. It is only our sincere hope that it will be · heard at the earliest convenient moment. DATED at MWANZA this 13th day of March, 2006. E. N. MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original.