20070419 TZCA Mwanza

ck thvi h f IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LUBUVA, J.A., MROSO, J.A., And RUTAKANG WA, J.A.) CRIMINAL APPEAL NO. 155 OF 2005 JULIUS S/O JUSTINE CHARLES S/O TUNGU GEBO S/O JOHN © RASTA ......... .................. APPELLANTS JOSEPH S/O NYAKIA © DAUD S. KAYANDA TUMBO © KAYANDA VERSUS THE REPUBLIC ............................................................. RESPONDEIIl (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Masanche, J.) dated the 15th day of December, 2004 in HC Criminal ADDeaI Nos. 130, 131, 132, 133, 134 and 135 of 2002 JUDGMENT OF THE COURT 14 March & 12 June 2007 RUTAKANGWA, J.A.: In Criminal Case No. 1165 of 2000 in the District Court of Mwanza, eight accused persons were being charged with the offence of armed robbery c/ss 285 and 286 of'the Penal Code. These were Julius Justine (1 accused), Juma Kisura (2nd accused), Benjamini Daniel (3rd accused), Charles Tungu (41h accused), Gebo John @ Rasta (51h accused), Mashaka Mashauri (61h accused), Joseph Nyakia 2 (7th accused) and Kayanda Tumbo Kayanda (8th accused). Although they denied the charge, the trial court found six of them guilty as charged and convicted them. They were then sentenced to thirty years imprisonment and twelve strokes of the cane each. They were aggrieved by the conviction and sentences. They unsuccessfully appealed to the High Court, and hence this appeal. However, one of them (Mashaka) has not appealed. The appellants in this appeal, Julius Justine, Charles Tungu, Gebo John @ Rasta, Joseph Nyakia and Kayanda Tumbo © Kayanda, 1st, 2nd , 3rd , 4th, 5th shall be referred to hereinafter as the and appellant respectively. Each appellant filed his own memorandum of appeal but their grounds of complaint are almost similar. Also, the 1st and 4th appellants, with the leave of the Court, filed additional grounds of appeal, which did not radically change the thrust of their original grievances. Before looking at these grounds of appeal and summarizing whatever arguments were advanced by both sides in respect of the same, we have found it necessary to start with a brief account of the 3 evidence which led to the conviction of the appellants. It was as follows. The 1st appellant was employed as a guard at the "St. Therezia Son of Jesus" convent at Nyegezi Kijiweni. He was trusted by his employers, who included Sr. Josephina Joseph (PW1), Sr. Emelina Selestine (PW2), Sr. Adelina and Sr. Egidia. On 22nd October, 2000, the 1st appellant had taken his friend, the 3rd appellant, to the convent. The two were permitted by the nuns to watch television, which was kept in the living room of their four bed-room residence. They even played and watched video cassette with the nuns' permission. On 29th October, 2000 the 1st appellant was on guard being assisted by guard dogs. At around 03.00 hours the convent was invaded by bandits who were armed with a gun and pangas. The bandits first broke into the room wherein Sisters Egidia and Adelina were sleeping. They physically assaulted the two and further indecently assaulted Adelina whom they gagged with clothes and tied up her hands. The nuns screamed for help. The screams and EI scuffles awakened PW1 and PW2. PW1 and PW2 rushed out of their rooms intending to go to assist their fellow nuns. They switched on the electric lights in the house. Before they could reach their colleagues they came face to face with the bandits. They retreated into the bedroom and got properly dressed. The bandits entered the bedroom and confronted the two nuns. The bandits forced the two nuns to lie on the floor. The nuns complied. The bandits demanded to be given money. They were given cash Tshs. 180,000/=. Thereafter they dragged PW2 out of the room and took her to the living room. One of the bandits took her near the cathedral door wanting to sexually molest her. PW2 put up a stiff resistance. She managed to thwart the bandit's heinous intentions, but as a result she was cut with a panga on the head. PW1 was equally cut with a bush knife after refusing to undress. All the same the bandits managed to get away with:- one Hitach make TV,. one Panasonic video deck, one remote control, two radios, one typewriter and its cover, 5 two suit cases, one charger, two wrist watches, an assortment of bed sheets, two food hot pots, one set of spoons, (I) one special stand for kitchen utensils and (m) two pouches. The total value of the goods robbed was Tshs. 1,054,000/-. The entire episode took over 11/2 hours. The two witnesses told the trial court the -2nd , 3rd , 4th and 5th appellants were among the armed robbers. After the departure of the bandits the nuns phoned the police. Before the police arrived at the scene of crime the 1st appellant, who all along had been conspicuously absent, presented himself. He warned the nuns not to raise any alarm. When the police eventually arrived they quizzed and arrested the Ist appellant and sent Sr. Egidia to Sekou Toure hospital. Acting on a tip from informers, on 5/11/2000 No. C 9461 D/CPL Chacha (PW3) searched the residences of Mashaka and the 4th IP 6 appellant. From Mashaka's residence a typewriter and one set of spoons were recovered, while from the 4th appellant a typewriter cover was recovered. These were subsequently identified by PW1 and PW2 as their properties which had been robbed on 29/10/2000. These discoveries led to the arrests of Mashaka, the 3rd , 4th and 5th appellants. While in police custody Mashaka, the 4th and 5th appellants made cautioned statements (exhibits P3, P4 and P5) to PW3. In their statements they confessed committing the robbery. They also implicated their co-appellants, among others, who were also arrested and jointly charged accordingly. The 1st appellant admitted to have been at the nuns' convent on the fateful night. In his bid to exonerate himself he told the trial court that at about 03.00 hours he heard a sound emanating from one building close to the nuns' residence. He went to check and saw nothing. Suddenly he was attacked by some unknown people who threatened him with a panga and took him to the guards' shed where 7 he was forced to lie on the floor. One of those people kept guard over him while the rest stormed into the nuns' house. After some time he heard a motor vehicle hooting. He got up. His "guard" had already gone. He broke out of the shed and presented himself to the police officers who interrogated him. He told them what had befell him and he was arrested. Under cross-examination he admitted that the compound was well lit and he managed to see clearly the bandits. He hastened to add, however, that they were not his co- accused. The rest of the appellants generally denied to have been involved in the robbery. The 2nd and 3rd appellants told the trial court that they were arrested on 6/11/2000 at night and taken to Igogo 4th police post. They were not told the reasons for their arrests. The appellant in denying the offence had this to tell the trial court: "I remember on 25/10/2000 I left at my (sic) I traveled from Mkuyuni to Nyakato bus stand I traveled to Kenya I deals (sic) with medicines I always import tablets from Kenya I took tablets when I came back I stopped at 8 Musoma I returned in (sic) Kenya I took also tablets in Kenya I returned in Mwanza I stopped at Magu I distributed those tablets on 30/12/2000 I slept there I departed there on 1/1/2001 I arrived at Nyakato ..." He was arrested on the evening of 1/1/200 1. The 5th appellant opted to keep quiet. None of the appellants called any witness. Against this background, in this appeal the appellants are seeking to have their conviction quashed because the prosecution failed to prove the case against them for the following reasons. Firstly, in respect of the 1st appellant, the case against him rested on mere suspicions as he was not identified by the nuns. Secondly, the identification evidence against the other appellants was very weak and therefore unreliable. Thirdly, the doctrine of recent possession was wrongly invoked in this case because the prosecution failed to prove that the typewriter and its cover as well as the spoons were the properties of the nuns. Fourthly, the trial court shifted the burden of proving the voluntariness of the alleged confessions to the defence. Fifthly, the trial court failed to 9 comply with the mandatory provisions of sections 230 and 231 of the Criminal Procedure Act, 1989, the C.P.A. hereinafter. The trial court found the appellants' evidence patently wanting in cogency. It accepted as true the evidence of the three prosecution witnesses. The appellants were accordingly convicted on the basis of identification evidence of PW1 and PW2, the doctrine of recent possession and the confessions of the 4th and 5th appellants and Mashaka Mashauri, after it was satisfied that the same had been voluntarily made. The first appellate judge upheld the conviction of the appellants on similar grounds. After properly directing himself to the guidelines set out by this Court in the case of Waziri Amani v. R. [1980] TLR 250 on visual identification, he was satisfied that both PW1 and PW2 had unmistakably seen and identified the 2nd , 3rd 1 4th and 5th appellants among the robbers at the scene of crime. We shall first deal with the complaint that the trial court failed to comply with the mandatory provisions of sections 230 and 231 of the C.P.A. Under section 230 the trial court is obliged to rule on 4 I 10 whether or not an accused has a case to answer, after the closure of the prosecution case. If the court rules that there is a case to answer then, under section 231, it shall remind the accused the substance of the charge against him and shall also inform him of his rights to give evidence on his own behalf, be it on oath or affirmation and to call witnesses in his defence and/or to give no evidence at all. The law requires that the accused's answer shall be recorded. In this case, although the record of appeal does not show that section 230 was complied with, the original record of the trial court shows unmistakably that the trial magistrate ruled that all of the accused persons had a case to answer. This was also confirmed to us by the 2nd appellant. Section 230 of the C.P.A. was, therefore, complied with. Both the record of appeal and the original record of the trial court, however, vindicate the appellants' complaint in relation to non compliance with section 231. There is nothing on record to indicate that this section was complied with. All the same there is no gainsaying that the accused persons, with the sole exception of the 11 51h appellant who opted to remain quiet, gave their evidence either on oath or affirmation. They were not even rushed into defending themselves. They were actually given three (3) clear days to prepare themselves. The defence hearing took two consecutive days without any apparent complaint from any accused person. After the seven had testified, they all told the trial court that they had no witnesses to call. The record of proceedings in the trial court has not been faulted on this. That being the case, then, the appellants were not denied their inalienable right to a full hearing and/or fair trial. For this reason, we accept, without any reservations, the contention of Mr. Mgengeli, learned State Attorney, for the respondent Republic, that the omission to strictly comply with section 231 (1) of the C.P.A. did not prejudice the appellants in any way. We accordingly find no merit in this particular ground of appeal and dismiss it. We shall now turn to the appellants' complaint against the invocation of the doctrine of recent possession. This doctrine traces 12 its legitimacy in section 122 of the Evidence Act, Cap. 6 R.E. 2002. This section provides as follows:- "A court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case". Explained in simple language this doctrine is to the effect that the court may presume that a than who is found in possession of stOlen goods soon after the theft is either the thief or has received them knowing them to have been stolen, unless he can satisfactorily account for his possession of the same. But as the courts have consistently held, the application of this doctrine must be made with care. This is not only because the presumption is rebuttable, but as was held in the case of George Edward Komowski v. R. (1948) 1 TLR 322:- "... it is not so strong as to displace the presumption of innocence to the extent of throwing on the accused the burden of giving 13 legal proof of the innocent origin of his possession. He has merely to give a reasonably probable explanation of how his possession originated and if he gives such an innocent explanation he is entitled to an acquittal unless the prosecution can disprove h i s story. Even if he gives an explanation which does not convince the court of its truth he need not necessarily be convicted. The true test is whether his story is one which might reasonably be true and if that is the case, it follows that the crown has not discharged the onus which lies continuously on it in this as in other criminal cases, to prove the accused's guilt beyond reasonable doubt". In this case there is no dispute that among the properties robbed from PW1 and PW2 on 29/10/2000 were a typewriter and its cover and a set of spoons. The undisputed evidence of PW3 is that on 5/11/2000 such goods were found in the possession of Mashaka and the 4th appellant. Both PW1 and PW2 identified them to be their stolen properties, and they were admitted in evidence without any objection from any of the appellants. We are, however, alive to the 14 holding of this Court in the case of Ally Bakari and Pill Bakari v. R. [1992] TLR 10, which was followed by the Court in James sb Paul @ Masibuka and Another v. R., CAT, Criminal Appeal No. 61 of 2004 (unreported). In Ally Bakari's case the Court held:- "Quite clearly, as a matter of law and logic, it is essential for a proper application of the doctrine of recent possession that the stolen thing in the possession of the accused must have a reference to the charge laid against the accused. That is to say that the presumption of guilt can only arise where there is cogent proof that the stolen thing possessed by the accused is the one that was stolen during the commission of the offence charged, and, no doubt, it is the prosecution who assumes the burden of such proof, and the fact that the accused does not claim to be the owner of the property does not relieve the prosecution of that obligation". 15 In the case at hand the two nuns (PW1 and PW2) gave evidence going to show how they identified the typewriter and its cover as well as the spoons to be the properties stolen on 29/10/2000. The appellants never challenged this evidence either in their cross-examination of these witnesses or in their defence. Both the trial court and the first appellate court believed this evidence and acted on it. This being a concurrent finding of fact by the two courts, it is not within the jurisdiction of this court to interfere with it. The appellants have not shown where the two courts below went wrong in so finding. We accordingly uphold this concurrent finding of fact that Exhibit P1 and P2 which were found in the possession of Mashaka and the 4th appellant, on the 6th day following the robbery, were sufficiently proved to be part of the robbed properties of PW1 and PW2. Both Mashaka and the 41h appellant totally failed to give any explanation, let alone a reasonably probable one, to account for their recent possession of the same. We, therefore, have no hesitation in holding that the doctrine was properly invoked and the two were properly convicted on it. We dismiss this ground of appeal. 16 Another complaint by the appellants is that the trial court shifted the burden of proving the voluntariness of the confessions contained in the caution statements on the appellants. They, all the same, never elaborated on it at all. Since it was raised, we consider it our duty to say something about it. The evidence on record shows that out of the original eight accused persons, three of them are shown to have, each one, made a caution statement to the police following their arrests. These are Mashaka Mashauri, Joseph Nyakia (4th appellant) and Kayanda Tumbo (5thl appellant). At their trial, the controversial statement was the one allegedly made by Mashaka to PW3. Mashaka objected to its being introduced in evidence because, he said, he was forced to sign it. A trial within a trial was held at the end of which the trial court ruled that it was voluntarily made. It was admitted in evidence as exhibit P3. PW3 told the trial court that he also took down the caution statements of both the 4th and 5th appellants. They freely and voluntarily confessed to have committed the robbery at the convent 17 of PW1 and PW2. The caution statements of both the 4th and 5th appellants were admitted in evidence as exhibits P4 and P5 respectively, without any objection from these appellants, as they claimed they did "not know them", meaning that they never made any caution statement at all. Indeed, while the 4th appellant never 5th cross-examined PW3 specifically on his caution statement, the appellant, never cross-examined PW3 at all. In the light of this it becomes a risible matter to hear them complaining now that the trial court shifted the burden of proving the voluntariness of their written confessions to them. That the 4th appellant made a caution statement wherein he freely confessed committing the robbery is further demonstrated by his complete turnaround while defending himself. In his evidence he told the trial court that he was forced to sign the caution statement under pressure because he "thought death was coming". We find this claim by the 41h appellant an afterthought which we are not prepared to buy. If the 4th appellant was assaulted and threatened to death he would not have failed to cross-examine PW3 on it, leaving alone accepting to have it admitted in evidence without any 18 objection on the basis that he never made one at all. Therefore, we are satisfied as the two courts below were, that exhibits P4 and P5 were not only voluntarily made but also that the confessions contained therein are true. The confessions are fully self-inculpatory and gravely incriminate the 1st appellant and the 3 1d appellant. The only appellant who is not mentioned in these caution statements including that of Mashaka Mashauri is the 2nd appellant. This Court in the case of Rashid Ally Mtiliga and Two Others v. R.., CAT Criminal Appeal No. 240 of 2004 (unreported) held:- "In ideal cases retracted confessions need corroboration as a matter of practice. Of course in saying so we are aware that it is possible for a court to convict on a retracted confession even without corroboration but such a confession must be received and treated with great care, caution and reserve". In the instant case, the 5th appellant did not expressly repudiate or retract his confession to PW3 at all. He has no escape route, so to say. The 4th appellant blew hot and cold over the issue as we have 19 already shown. But even if we were to hold that his confession needs to be corroborated, which we do not think is the case, such corroboration would come from the fact that he was found in possession of one of the robbed goods. It is also the complaint of the appellants that the identification evidence against them was decidedly weak. They are claiming that since the robbery took place in the dead of the night, the witnesses were assaulted and the bandits were total strangers to them, it cannot be held with certainty that they were properly identified. That that was the case is augmented by the fact that the witnesses never gave any description of the robbers to the police nor was there any identification parade held. Dock identification by the two witnesses was insufficient, they have maintained. On his part, Mr. Mgengeli contented himself with the assertion that as there was sufficient light at the scene of crime and the entire incident took over one and a half hours, the appellants were adequately and correctly identified by the two prosecution witnesses. 20 Having considered the evidence of PW1, PW2 and the 1 appellant we are of the settled mind that circumstances at the scene of crime favoured an accurate and unmistaken identification. The two prosecution witnesses had ample time to see and identify some of their assailants unmistakably. They also had very close encounters with some of the bandits. The witnesses were unequivocal in their assertions that they saw and recognized the 3rd appellant, whom they knew before hand. They also mentioned the other appellants, save the 1st appellant, although it was their first time to meet them. They mentioned particularly the 2nd and 5th appellants. It is true that PW1 and PW2 did not give any description of any of the appellants to the police or to any other person. However, this ought not to be a crippling omission for the prosecution if there is found to be cogent evidence to establish that the two witnesses were both honest and unmistaken in their identification of the 2nd and 5th appellants who were total strangers to them. This is all because there is no law requiring that in every identification case a description of the suspect has to be given: see, for instance, (1) Mohamedi Bin Alli v. R. (1942) 9 EACA 9 and (2) Jumanne Omary @ 21 Karikenye v. R., CAT Criminal Appeal No. 142 of 1999 (unreported). In the latter case, this Court held that there are instances where a witness can identify a person in an identification parade without having pointed any identification features particularly when a parade is held a few days after an incident. There is no dispute on the fact that in this case no identification parade was held. The purported identification of the 2'' and 5th appellants by PW1 and PW2 was undeniably dock identification. The same was done in August and September, 2001. That was over nine months after the incident. What was the evidential value of that type of evidence? Commenting on the value of dock identification evidence where no identification parade is held this Court, in the case of Musa Elias and Two Others v. R., Criminal Appeal No. 172 of 1993, (unreported) said:- "Furthermore, PW3's dock identification of the 3rd appellant is valueless. It is a well 22 established rule that dock identification of an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade at which the witness successfully identified the accused before the witness was called to give evidence at the trial". Viewed from this perspective, we find the dock identification evidence against the 21 appellant to be of little value. The witnesses might have been honest, but human as they were giving evidence after nine months, they might have been mistaken. That this might have been the case is given further impetus by the fact that he was not even mentioned by the three accused persons who confessed to the robbery to have been one of the robbers. Furthermore, there is no iota of evidence on record, apart from his own version, to show how and why he was arrested and who arrested him. On being cross-examined by this appellant, PW3 said: "I do not know you at all". 23 PW4 Insp. G. Mroto, who arrested most of the accused persons, never mentioned this appellant in his evidence at all. For these reasons, we find ourselves constrained to hold that the case against the 2nd appellant was not proved beyond reasonable doubt. He was, therefore, entitled to an acquittal. However, the same cannot be said of the 5th appellant who freely confessed to have participated in the robbery and never defended himself. Coming to the Ist appellant, his argument is that his case was based on mere suspicions. Mr. Mgengeli, however, is of a different view. To him, the conviction of this appellant was properly based on circumstancial evidence. Our own objective evaluation of the prosecution evidence has led us to the conclusion that, indeed, the case against the 1st appellant rested entirely on circumstancial evidence. But as Sir Udo Udoma, C.J. aptly observed in R.v. SABUDIN MERALI & UMEDALI MERALI, Uganda High Court Criminal Appeal No. 220 of 1963 (unreported): 24 "... it is no derogation to say that it was so; it has been said that circumstancial evidence is very often the best evidence. It is the evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics". In convicting the Ist appellant, the trial magistrate, said:- "The very dangerous person among the accused persons is the first accused through the records it shows that everything was within his knowledge before the event simply awarded 10,000/- Tshs. that when bandits entered inside had no knowledge, having gone through his defence it is quite obvious that he was the last person to close the main entrance and surrendered the keys to his boss PW1. Also dogs. It seems obvious that they were not released ... there is no (sic) any portion of evidence to show that he was even injured or even bruises it remains the actual fact that he thought the event would not be alarming ..." 25 Although inelegantly put we have been able to follow his reasoning. Shortly put, he found the inculpatory facts to be his failure to put up resistance when the bandits struck and to release the guard dogs as well as the easy entry by the bandits into the convent when the gate was securely locked. To him all this was possible because he was a principal participant as he was paid Tshs. 10,000/- by the robbers as is evident from the caution statements of the 4th and 5th appellants. It is unfortunate that the 1 1 appellate judge, apart from making a fleeting reference to this appellant as a "home boy", never said anything on him. From our own scrutiny of the entire evidence on record, we are satisfied that the conviction of the 1st appellant was richly deserved. The facts pointed out by the trial magistrate have convinced us that he was an abettor to the robbery. The evidence of both PW1 and PW2 is loud and clear that although the entire incident took about 1 1/2 hours the appellant was never seen nor heard until after the departure of the robbers. The same witnesses told the trial court, and were not contradicted, that when the 1st appellant eventually 4 26 emerged from wherever he had been he urged them not to raise any alarm. That sounds very strange. This conduct was not consistent with the innocence of the appellant, given the fact that he did not even raise any alarm himself when the robbers were in the nuns' residence. The undisputed prosecution evidence on record is further to the effect that after the arrival of the police it was discovered that the guard dogs had been kept closed in their kernel during the robbery. In the absence of any explanation from the appellant, it can be safely assumed that this was done by the 1st appellant to facilitate the easy commission of the robbery. It will be recalled that it was the 1st appellant's defence that he was locked by the bandits in the guards' shed and freed himself after their departure by breaking its window and jumping out through it. Before us he has maintained that he was freed by the policemen who arrived at the scene of crime later. He definitely must have been lying. He was either released by the police or he freed himself. Which is which? These open lies are not consistent with his innocence. 27 All in all, we are satisfied that the 1 appellant was not convicted on the basis of mere suspicion. There was strong circumstancial evidence implicating him with the robbery. Although this evidence on its own could not have secured a conviction, it was convincingly lent further weight and assurance by the confessions of Mashaka, the 4th and 5th appellants to the effect that they collaborated fully with him and he was paid Tshs. 10,000/- to give them access into the convent. Before we conclude our discussion we have one important observation to make. Like the Anglo-American justice system, our system dislikes secret trials. These systems favour open trials as they impose an effective restraint upon the possible abuse of judicial power, serve notice to witnesses unknown to the parties, educate the people and make them acquire confidence in their judiciary apart from keeping out false witnesses. In short, our justice system is not a cloistered virtue. In the instant case, it is to be observed that both PW1 and PW2 gave their evidence in camera. This followed an application by the Public Prosecutor which was never resisted by the accused. At first we thought that this was highly irregular and 4. b 28 unwarranted. However, our purposive reading of S. 186 (1) (b) of the C.P.A. has led us to the conclusion that the trial magistrate properly exercised his discretion in the interests of justice having regard to the circumstances of the case and the calling of the witnesses PW1 and PW2, the nuns. Having so observed and for the earlier given reasons, we hold that the 1st , 3rd , 4th and 5th appellants were rightly convicted as charged. We dismiss their appeal against conviction and sentences. However, we allow the appeal by the 2nd appellant in its entirety. His conviction and sentences are quashed and set aside. We order for his immediate release from prison unless he is otherwise lawfully held. DATED at DAR ES SALMM this 19th day of April, 2007. D.Z. LUBUVA JUSTICE OF APPEAL J.A. MROSO JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL 29 I certify that this is a true copy of the original. (S. M. RUMANYIKA) DEPUTY REGISTRAR Delivered under my hand and Court Seal in open Court/Chambers at Mwanzathis .....................day of .............................................. DEPUTY REGISTRAR