20060224 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MUNUO, J.A., MSOFFE, J.A., And KAJI, J.A. CRIMINAL APPEAL NO. 15 OF 2004 MUGETA S/O MANYAMA ................................~ ................ APPELLANT VERSUS THE REPUBLIC .............. I ••••••••••••••••••••• I ••••••••• I •••• I ••••••••• RESPONDENT - (Appeal from the conviction of the High Court of Tanzania at Musoma) (Shangwa, l) dated the 12th day of December, 2003 in Criminal Sessions Case No. 213 of 2001 JUDGMENT OF THE COURT MSOFFE, J.A.: The appellant was· sentenced to suffer death· by hanging consequent upon his conviction for murder by the High Court, Shangwa J, sitting at Musoma. Aggrieved... he has preferred this appea. At the trial, the appellant was represented by Mr. Mutalemwa, learned advocate. · On 25/4/2002 a prf;liminary hearing was conducted. The memorandum of matters agreed not to be in dispute comprised the following:- -•·I 2 "' 1. That the deceased is dead and was killed by the accused. 2. Deceased's death was not therefore natural; it was a violent death. 3. That the deceased was validly married to one Rashid. 4. That the accused was deceased's paramour in adultery. 5. That the deceased had a son called Baraka. 6. That the contents of exhibits Pl, P2, P3 are correct and true. In order to appreciate the sequence of events the background giving rise to the case may be stated briefly. The appellant and the deceased Zaituni Rashid were lovers in adultery. Both lived at Butiama village within Musoma District in Mara Region. The deceased was married to PW2 Rashid Kagoma and the marriage was blessed with one issue in the name of Baraka who testified as PW1. The-deceased t:lad her own-holJse-wher-e-she-::_lived with Baraka. Her husband lived at Bunda where he had another wife. On 26/12/94 the deceased and Baraka were asleep in their house. At around 2.00 a.m. Baraka, who was sleeping in a different r.oom, heard her mother O· ,t 3 crying and it sounded like people were fighting in the deceased's room. He rose up and went to the latter's room and saw the appellant coming from the deceased's room and running away saying "nimekuweza''. Baraka entered her mother's· bedroom and saw her lying on the floor. He observed that his mother was dead. He tried to trace the appellant but in vain. He reported the incident to neighbours and his father Rashid. The body was taken to hospital for post mortem examination. The medical report was that the death was due to multiple injuries and massive internal bleeding. Also that there were multiple facial bruises, a ruptured anus, rectum, colon and spleen. In his defence, the appellant admitted killing the deceased saying he did so by bad luck. He testified and stated that on the material day he went out on a drinking spree. He met the deceased who invited him to drink a local brew known as "machicha". Later, he decided to go back home and the deceased followed and pulled him to her house. He resisted the idea of sleeping with her on that night. He kicked her and she fell down on "mafiga" ( cooking stones). He left and went back home. 4 At the hearing of the appeal Mr. Mag6ngo, learned advocate, appeared and argued the appeal on behalf of the appellant. On the other hand Mr. Kaduri, learned Principal State Attorney, resisted the appeal on behalf of the respondent Republic .... The complaint in the first ground of appeal is two-fold:- One, - - - - - that the trial judge failed to give the appellant the opportunity to comment on the assessors before selection •.. Two, that the judge failed to explain to the assessors their respective duties in the trial of the case. In elaborating the two limbs of the above ground, Mr. Magongo referred us to the proceedings of 2/12/2003 where it is apparent that the• appellant was not given the opportunity to say whether or not he had objection to any of the assessors, and where it is also apparent that the assessors were not told of their duties in the conduct of the trial. In the premise, Mr:· Magongo invited us to - - - .. -II':. ------·-·------ - - · - - · ------------·· hold that the trial was not held with the aid of assessors citing this Court's decision in Laurent Salu and others v. R, Criminal Appeal No. 176/93 (unreported). In response, Mr. Kaduri maintained that the above shortcomings were of no consequence because objection, if any, to the assessors could have been reflected in subsequent proceedings. In the 5 absence of such objection, Mr. Kaduri urged, the appellant had no objection to any of the assessors. Also, Mr. Kaduri went on to say that the fact that the assessors were not explained their duties did not prejudice the appellant in any way. On the contrary, Mr. Kaduri went on to say, the record is clear that the assessors did their job quite well - an indication that they knew their duties in the trial in question, he concluded. On our part, we are in agreement with Messrs. Magongo and Kaduri that the appellant was not given the opportunity to say whether or not he had objection to any of the assessors .•. Likewise, it is also true that the judge did not explain to the assessors their duties• in the · .. conduct of the trial. As a rule of practice the judge ought to have given the appellant the opportunity to say whether or not he objected to any of the assessors. Also, the judge was duty bound to ... ex13lain to th€: assessors their expected role-anEl-d·ut:ies-ift-t-Me-c0Adt1ct of the case. The rationale for doing so is a simple one:- to ensure a fair trial. However, in the justice of this case, we are satisfied that the above shortcomings did not occasion a miscarriage of justice. We say so for the reasons stated by Mr. Kaduri. It is true, as contended by Mr. Kaduri, that -if the appellaDt had any objection to 6 any of the assessors somehow the point could have come out in subsequent proceedings. All we are saying here is that if there was a serious objection there was always room for the appellant, or his advocate for that matter, to raise objection in subsequent proceedings. The fact that this did not happen is an indication that the appellant had no objection to the assessors. In the same vein, "' the record is clear that notwithstanding the failure to explain to the assessors their duties in the trial, the said assessors were very much alive to their respective duties in the trial. They asked questions as and when they were called upon to do so, they gave their opinions at the appropriate time etc. Salu's case is distinguishable from this one. In that case, there \!\'.ere several irregularities the cumulative effect of''which was that it could not be said safely that the trial was with the aid of assessors. Here, . -- there .were .only two .. shortcomings which-;--as--earlier-stat:ed, did not -----------~----·--~--------- occasion a failure or miscarriage of justice. The second ground of appeal has a direct bearing on the facts adduced at the preliminary hearing. Mr. Magongo argued that the facts were not read and explained to the apgellant in a language he understood, contrary to the express provisions of Ruie 4 of the 7 · Accelerated Trial and Disposal of Cases Rules, - GN 192/88 which reads:- "4. The person prosecuting shall, in every trial under these Rules, prepare, as clearly as -------'----1:>0ssi0le,-the_facts of the case which shall be read to the accused and exp,!ained in a language he can understand." In the same vein, Mr. Magongo went on to urge that the appellant was not called upon to state which of those facts he admitted "' contrary to the requirements stipulated_ under Rule 6 of the above GN which reads:- "6. 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". Since Rules 4 and 6 were not complied with the exhibits tendered therein should be excluded from the evidence, Mr. Magongo concluded. In response, Mr. Kaduri-was-of-the view- that the exhibits should not be excluded from the evidence because the record of proceedings shows that at some stage the appellant, in his own words, indicated that he admitted_ those facts. 8 There is no serious dispute that Rules 4 and 6 of the above GN were not complied with to the letter. The judge was duty bound to make sure that the facts were read over and explained to the appellant in a language he understood. Likewise, he ought to have asked the appellant to state which of those facts he admitted and record the same. However, in the justice of this matter, we agree with Mr. Kaduri that notwithstanding the fact that the judge did not strictly comply with the above Rules, the record is clear that the facts were read over and explained to the appellant after which he stated:- "The above matters which my advocate has stated to the court that they are not in dispute are true/ and I admit those facts. " We think that if the facts had not been read out and explained to the appellant and if he b.flJ;L.o.o_Lbeeo_asked_to_stat.e-.whlch--0f-t-A0se..faets ., • . -.... ,......·--···•···.. -·-· ..... ►·---···,_.-- ·- he admitted, he could not have come up witb the above answer. In this regard, we find no justification in excluding the exhibits put in evidence without objection at the preliminary hearing. We may add that in future magistrates and judges are advised to make sure that 1··. I " 10 With respect, we are in agreement with Mr. Kaduri that the above · alleged contradictions were not material. ... The contradictions or inconsistencies, if any, relate to events after the incident. Also it was quite possible that PWl and PW2 did not contradict each other on the state of the body. We say so because in common pqrlance a person may be said to be naked if he/she does not have his/her clothes on. Going by this reasoning, it was quite possible that the deceased was naked in the sense that she was not putting on clothes. In other words, the fact that her body was covered with a piece of cloth by PWl did not exclude the possibility that she was actually naked in the sense that she did not have her clothes on. In the same spirit, the fact that PW2 did not tal~ of a bed-sheet flooded with blood was inconsequential because it was still possible that no direct question was put to him on that aspect. In view of that p•--~~,····•.•··•=""~·"•~ possibility-it-would .be-unfair: to say that~there-was-a-contradiction-in-~ ~ ..... ~ - - the evidence of PWl and PW2 on the point. In conclusion on ground four, we are of the view that there is no sufficient material upon which we could safely say that PWl and PW2 were not credible witnesses. Like the High "Court, we are satisfied that they were credible witnesses. Therefore, in view of the evidence ;:, 11 of these prosecution witnesses, which was corroborated by the l°i'• caution statement (Exh. P3), the conviction was well founded. In the result, on the available evidence, we are satisfied that the appellant killed with malice aforethought. Indeed, the following passage in the judgment of the High Court is material in highlighting the nature of the killing in question:- "The state in which the deceased's body was found shortly after she was kille~ and the state in which it was found after post mortem as indicated above is not consonant with the accused's version that he only kicked her once on her thighs which .. caused her death. The deceased's death was indeed violent and during preliminary hearing, the accused did acknowledge this fact which is irresistible. The blood which was found oozing out of her eyes, nose, and mouth, and the bruises which were seen on her face suggests that she sustained wanton blows on her head which were inflicted upon her by~'the accused person. Also the state· of injury seen in her abdomen which formed a rupture of her anus, 12 rectum, colon and spleen irresistibly suggests that some object was used by the accused to cause such injury be it a bottle which was mentioned or something else which is unknown. · I am of the view that the wanton blows which I believe· were inflicted upon the deceased, and the strange method which was used to inflict abdominal injuries ,., upon her were not so inflicted by the accused by bad luck during a scuffle as alleged by the defence. They were deliberately inflicted by him in order to kill her or cause her grievous harm." Hence there will be nothing to fault the High Court in its findings of fact. The appeal has no merit. It is dismissed accordingly. ~-- --··· - -·-·-··-·•-•-..,_•-------· ···-~ ~ . . ·~---~ 13 DATED at MWANZA this 24th day of February, 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. (S. ) DEPU R