20071207 TZCA Dar es Salaam

THIS BOOK BELONGS TO ffll I LIBRA.K\. ·o_F THE COURT 0 1 1: &PPEAL Of TAi'l'ZANI,._ IN·THE COURT . . ,OF APPEAL OF TANZANIA ATARUSH~ . '(CORAM: MROSO, J.A.,KAJX: J.A. -A~d RUTAKANGWA, LA.) . CRIMINAL APPEAL NO. ~20 OF 2007 . . . . . I 1. BARIKI KINYAIYA. } \ . 2. JACOB Hl:JBERT ................ APPELLANTS ,. . . . . . . . . . . . . . . . . 3. ELIAONI KINYAIYA · .: 1 · , . VERSUS ~ _ THE REPUBLIC ;............................... i ............... RESPONDENT . ' .. ·, I' ·(Appeal from the.Judgment of the High Court of Tanzania · at Moshi) ,'J' 1 .: I ,, (Mchome, l.)' Ii , • I' . th dated the 13 day of December, 2002 in· I' Criminal Appeal No. 46 of 1998 . I' . -------- .--- I: JUDGMENT OF THE GOURT 26-0ctober, 2007 1 February, 2008 I ·. i • I MROSO, J;A:.: I t,, Toe three appellants were among [four ., suspects who were . t . charged with armed robbery before the District Court of Moshl. Toe first accused in the case, on~ Bashiri Bakak who was of the age o; . 1: .. r . 13 years at the time he appeared . at the tri~II court, was convicted . on 1. whatwas entered as plea of guilty to the charge. Being a juvenile tie I I II I :•:- • ., ~1 _., I l· ·- \ I I [ Ii I, 'I I ;I I l 2 could not be committed to prison, so he was sentenced to suffer four strokes of corporal punishment. He appealed to the High Court but the court took the view that •since he had "unequivocally" pleaded guilty to the charge, he was precluded under section 369 of the Criminal Procedure Act, 1985 from appealing. His appeal was dismissed for that reason. He did not lodge a further appeal to this Court. The first appellant in this appeal was the second accused at the trial and the second appellant as well as the third appellant were the third and fourth accused respectively at the trial. The trial court a~er a full trial found all the three appellants guilty as charged, convicted them and sentenced each one of them to thirty years imprisonment. Their appeals to the· High Court at Moshi against conviction and sentence were dismissed in their entirety. They have now appealed · to this Court. The first appellant Bariki Kinyaiya and the second appellant Jacob Hubert lodged a joint memorandum of appeal but, subsequently, the first appellant lodged additional grounds of appeal ) ' ,, I ' 3 in respect of himself only. The third appellant lodged his own separate memorandum of appeal and did not have any additional grounds of appeal at the hearing. All the three appellants are residents of Marangu in Moshi Rural District. According to the evidence on which they were convicted, all the three appellants together with the first accused at the trial broke into the residential house of one Philemon Mchihiyo (PW2) of Rawia, Marangu at about 01:00 hours on 18/12/1996. Two ladies who were sleeping in the house, Doreen Peter Minja (PW3) and Margreth Mchihiyo (PW4) were slashed with pangas and a suitcase containing clothing worth Tshs. 161,000/= belonging to Margreth (PW4) was stolen In the process. That property was never recovered. PWl - Veronica, who shareo a. room with Doreen (PW3), said she identified the bandits because of their torches which lit while inside the house. PW3 - Doreen also said she was able to identify the intruders both because they lit torches which they had and that there was electricity light in the house. But in the same breath the witness said that when the bandits entered the house ''the light was ) 4 not onn and that the only aid to identification was the light from the torches which those bandits lit. Similarly, PW4 - Margreth who was in a separate room said she was able to identify the appellants because of light from the torches which the bandits carried. According to one Stephen August Mlay - PW6 - on 10th March, 1997 which was some 82 days after. the robbery, news was received in the village that some people were hiding in a cave by a river valley. The cave was ambushed and four people who included the ·, first and third appellants (the second and fourth accused persons at i I the trial) were arrested and surrendered to the police at Himo. The prosecution witnesses did not say how or when the second appellant was arrested. But going by his own evidence, he was arrested some time in early March, 1997 and was put into a police lock up on 6th March, 1997. All the appellants denied involvement in the robbery. The original trial magistrate who had heard all the evidence disqualified herself .from further hearing the case and a second magistrate, with the consent of the appellants, wrote the judgment in the case. Considering that the question of identification was critical 5 . I in the case, she said she was satisfied thatI the culprits were well I identified for the following reasons:- "The Witnesses says (sic) that all of the bandits were holding torches which were on. That thus through (sic) the torches' light they were able to identify them ..... i Also the time of the event. It shows tbat thbre was enough time for I ! the victims to identify the attackers ..... '~; The appellants were consequently convicted as charged. The High Court (Mchome, J) to which fthe appellants appealed upheld the conviction and sentence on the basis that:- "The appellants were known to the complainants from childhood and they spent sorr,etime together in the house which had fight froril electricity and the thieves torches. The complai)ants named the appellants immediately as their ! assailants and thieves." The grounds of appeal by all the appeflants can be restated as I I follows:- I I First, that the evidence of ld~ntlflcatlon was unsatisfactory and was contradictory. Second, that a caution statement - Exhibit P3 - by the first •• 6 accused at the trial was improperly used against them. Third, that section 192 (3) of the Criminal Procedure Act,_ 1985 was not complied with. Fourth, that the incriminating _evidence against them was given by_ close family members and that it needed corroboration. Fifth, that the weakness of the defence was used as a basis for convicting them. The issue of identification is indeed critical in the case, otherwise there is not any other cogent evidence which implicated th_e appellants. The sole means aiding identification during the robbery was light from torches which the robbers carried. Although PW3 - Doreen - at one time claimed that there was electricity light which also enabled her to see and identify the robbers, she soon retracted that evidence when she said - "When you entered in the room the light was not on ..... All (of) you have (sic) torches on and the light was which enabled me to see you well". 7 It is evident, therefore, contrary to what t~e High Court observed, the sole source of light ·on which PWl ~ Veronica, PW3 - Doreen and PW4 - Margreth relied in their claim that they identified the robbers were the torches which those robbers used .when they were in the house. The question is whether the light from those torches would enable the witnesses to identify the intruders reliably, as the two courts below believed. Ordinary human experience is that a person uses a torch, otherwise known as a flashlight in American !English, to enable them to see an object or a person infront of the user but without the user being clearly seen by the person shone at because of the blinding Ii effect of such light on that other person./ It" may be possible, howev~r, for a person infront of the user df the torch who is not ! • I •·•· directly shone at to see and identify the person using the torch if the I I light from the torch is reflected by a shiny w~li or object; otherwise, usually, it is not easy to identify reliably the user of the torch who directs the light from the torch to objects infront of or around them. I In the case under discussion there was no evidence that the light from the torches was reflected by the walls of the room or by shiny 8 objects in the room. In the absence of such evidence there should be doubt that light from the torches enabled the prosecution witnesses mentioned above to identify reliably the bandits to be the appellants.. Mr. Juma Ramadhani, the learned State Attorney for the respondent Republic, tried in vain to argue that the light from the' torches and electricity light in the house could have enabled the witnesses to identify accurately the bandits more so because those bandits spent quite some time in the house searching for money. But we already discounted the question of electricity light because such lights had not been switched on. As for the torch light, we have just expressed our doubts about the help from it for reliable identification. Mr. Juma Ramadhani also argued that since the appellants were from Marangu albeit from a different village, it was possible for PWl and PW3 to identify them with the help of the available light. With respect, the problem with the identification of a person shining a torch away from them is not solved merely because the appellants 9 were from Samanga village while the victims were of Rawia Village, . i . . . . _both in Marangu. The risk of honest but mistaken identity remains . I . . and courts must be ever alert to such a risk, lest they become instruments of wrong conviction of criminal. suspects. The case of • I Waziri Juma v. R [1984] TLR 250 cited b~ Mr. Juma Ramadhani is authority on precautions to be taken in ~aJs of visual identification which is described as being of the weakest kind. We are giving similar warning on ·the risks of identification in circumstances of unreliable visual aid. Was the caution statement - Exhibit P3 - which was made by the first accused at the trial - Bashiri Ba~ari - used as evidence against the appellants? Apart from ~erely mentioning that . I statement in her judgment, there is no indication that the · trial · magistrate used it to found a conviction of any of the appellants. I The appellants' complaints regarding that evidence is therefore I unfounded. We dismiss that ground of appek It is true that section 192 (3) of the Criminal Procedure Act, 1985 was not complied with. As has bee'n pointed out in a number of I I 10 decisions of this Court - see for example a recent decision - Criminal Appeal No. 225 of 2007 · - Leonard Jonathan v. Republic, (unreported) the principal purpose of section 192 of the Criminal Procedure Act, 1985 is to expedite criminal trials and to reduce costs of S\JCh trials. Where It Is demonstrated that failure by a trial court to comply with that section· prejudiced an accused person, an appellate court will intervene. In this appeal the appellants merely complained that the section was not followed, without going further to show if such failure prejudiced them in any way. Here we can only remind trial courts to comply with all relevant legal provisions, including section 192 of the Criminal Procedure Act, 1985, because, after all, law is enacted in order to be complied with by everyone and at all times, and not only on occasions when a person chooses to do so. We dismiss that ground of appeal. The fourth complaint by the appellants is that the incriminating evidence was given by close family members. It is true that the evidence of identification was given by a mother (PWl), daughter (PW3) and a daughter-in-law (PW4). But that is not surprising. Those were the victims of the robbery. They all lived in the house ) 11 which was broken into and in which the robbery took place. They were the persons who claimed to have _seen and identified the robbers. There was no evidence that people who were- not members of the Mchihiyo family were also present during the robbery but were left out as witnesses at the trial. In one of the decisions of this Court - Paulo Tarayi v. R, Criminal Appeal No. 216 of 1994 (not yet reported), it was therein aptly said:- "We wish to say at the outset that it is, of course, not the law that whenever relatives testify to any event they should not be believed unless there is also evidence of a non-relative corroborating their story. While the possibility that relatives may choose to team up and untruthfully promote a certain version of events must be borne in mind, the evidence of each of them mu~ be considered on merit ..... ". In the present appeal we did not accept the evidence of identification of those witnesses because we considered that the existing .,) ; j 12 circumstances rendered it unreliable, not because It was the evidence of close relatives. We, therefore, also dismiss that ground of appeal. The fifth ground of appeal was that the trial court and the first appellate court capitalized on the weakness of the defence evidence. We have read the judgments of the trial court and of the first appellate court and we could see no evidence in support of this complaint. We find no basis for that ground of appeal and we dismiss it. Although we have dismissed the second, third, fourth and fifth grounds of appeal, we found the complaint of unreliable evidence of identification justifiable. Indeed, even the learned State Attorney, on reflection, conceded that the evidence of identification was too weak to be. relied on. Once the evidence on identification collapses, . nothing was left of the prosecution case against the appellants. Had the two courts below not misdirected themselves on that evidence they would have found that the guilt of the appellants had not been proved beyond a reasonable doubt. 13 We, therefore, allow the appeal by quashing the conviction and . sentence and setting aside the decisions ofl the. courts below. The · appellants are to be set free forthwith unl~s lawfully held for some other cause. . , I GIVEN AT DAR ES SALAAM this 7th day :of December, 2007. J. A. MROSO JUSTICE OF APPEAL I I I s. N. KAJI I JUSTICE OF APPEAL E. M. K. RUTAKANGWA JUSTICE OF APPEAL . I I certify that this is a true copy of the original. KA) I RAR )