20070824 TZHC Mbeya

.... IN THE COURT OF APPEAL OF TANZANIA . AT MBEYA (CORAM: LUBUVA, l.A., NSEKELA, l.A., And MBAROUK, J.A.) CRIMINAL APPEAL NO. 192 OF 2006 JULIUS ALLY •..............\ ................ ~............................... APPELLANT VERSUS THE REPUBLIC ...-.............................-. ........................ RESPON·DENT (Appeal from the decision of the High Court . of Tanzania at Mbeya) (Othman, l.) dated the 23 rd day of February, 2006 in Criminal Sessions Case No. 58 of 2004 JUDGMENT OF THE COURT 17 August & 10 September 2007 NSEKELA, J.A.: The appellant Julius Ally, was convicted of murdering the deceased, one Sales Pamiso on or about the· 11.9.2001. He was sentenced by the High Court (Othman, J.) to suffer death by hanging. Aggrieved by that decision, he has now appealed· to this Court. At the hearing of the appeal, Mr. Mika Mbise, learned advocate represented the appellant and the respondent Republic was represented by Mr. Mwenda, learned State Attorney. I I I - ........ 2 . Mr. Mbise, preferred three grounds of appeal, namely - "1. The Honourable trial Judge erred on putting undue weight to the repudiated confession as the basis for a conviction in such a serious offence. 2. The Honourable trial Judge erred on holding the repudiated confession was corroborated by the appellant's incriminating admissio~ to PW1. 3. The Honourable trial Judge erred in the process of his evaluation of evidence on record and this might have led him to a wrong conclusion." At the hearing of the appeal, the learned advocate argued these grounds of complaint together. The essence of these grounds revolved around the voluntariness of the appellant's ~aution statement ( exhibit P2) _and the weight to be attached to such evidence in the event it is repudiated, as was the case herein. 3 Undoubtedly, the core p·iece of evidence against the appellant was the repudiated caution statement recorded before PW2, D. 2385 D/Cpl. Michael. The complaint by Mr. Mbise is that the learned trial judge placed much reliance on the repudiated caution statement, which was in effect a confession by the _appellant that he had murdered the deceased. He submitted that the confession was professionally recorded, as he put it, bearing in mind that its source, the appellant, was an illiterate person. He added that the confession was not a voluntary one and therefore, should not have been admitted in evidence. The second limb of Mr. Mbise's complaint is the absence of independent corroborative evidence to lend credence to exhibit P2. Mr. Mbise did not question that the caution statement was recorded according to law. In fact he stated that it was professionally written by which we understand ,. .·.• it to mean that the . · requirements of the law were complied with. During the trial within a trial, the appellant said that he had been assaulted by the police including PW2 while in custody. Mr. Mwenda, learned State Attorney, ,. 4 suqmitted that the caution stat~ment was duly admitted in evidence after the· co(frt had conducted a trial within a trial and the learned trial judge was satisfied that the statement was voluntary .. The learned trial judge, in admitting the caution statement, had this to say- "I am fully satisfied beyond reasonable doubt that the statement was freely and voluntarily given to PW2 by the accused. First, it was recorded within hours of the accused's transfer to Tukuyu police on 6.12.2001. Second, its contents contain detailed materials which could only have come from him or of what only he was privy to. Third, it is common ground that the recording of the statement fully met the statutory requirements of the law ... . Fourth, there is no evidence that PW2 had any hostility .... or ulterior motive to falsely implicate the accused. Both said they never knew each other before the day the statement was recorded. Fifth, it is not in-the--record of the 5 District Court proceedings that when the charge was read over to the accused on 7.12.2001 tha~ a complaint of beatings was made." The learned trial judge was fully aware that the prosecution must prove beyond reasonable doubt that the caution staternent was freely and voluntarily and he gave reasons for believing so. The prosecution called PW2 as its material witness in establishing that the caution statement was made voluntarily. This witness testified affirmatively to the statement made and to the absence of threat or promise. It was the duty of the prosecution to present completely the evidence upon which it relied· to discharge its burden. In .the circumstances, it is our considered view that the caution statement made by the appellant was made voluntarily. Undaunted, Mr. Mbise submitted that the caution statement needed corroborative evidence. It was not enough to stand on its own. We have already found that the caution statement was made properly and legally. The next question to resolved-is whether or not 6 -;· - ~'~: .·~ ... . :. it is true. To answer this question, we refer to our decision in . Hatibu Tengu v The Republic, Criminal Appeal No. 62 of 1992 ( unreported) wherein we stated as under - "The next test comes when assessing or evaluating the confession itself namely whether it is true. In arriving at this decision the court is required to consider all the circumstances in the case including the question whether there is some corroboration. If the confession is corroborated in some material particular by some other independent evidence, the court can easily. arrive at the conclusion that the confession is true. In the absence of such corroboration, the law does not prohibit the court from acting and founding a conviction on such confession if it is otherwise- satisfied on the truthfulness of the confession. However mindful of the fact that confessions can be improperly obtained or deliberately falsified, the courts have evolved the rule of practi(e- or prudence requiring corroboration or in the absence of such corroboration the court should before 7 acting or founding a conviction on such uncorroborated confession be fully satisfied in all the circumstances of the case that the confession is true. It is only in such a situation that the necessity of self-warning arises, this in order to ensure that the court is alive to this danger." (See also: Tuwamoi v Uganda (1967) EA 84; Ali Salehe Msutu v R (1980) TLR 1; Richard Lubilo and Mohamed Seleman v R Criminal Appeal No. 10 of 1995 (unreported). The principle that has been developed from decided cases of this Court and its predecessor, the Court of Appeal for Eastern Africa is that there is no rule of law or practice requiring corroboration of a retracted/repudiated statement or confession before it can be acted upon. However, it is dangerous to act upon it in the absence_ of . corroboration in material particulars or unless the court, after full consideration of the circumstances, is satisfied of its truth. This Court in Criminal Appeal No. 18 of 1994, (i) George Michal Rajabu (ii) Samweli Yasin Mwafute (unreported) stated as follows:- 17 8 "The position, presently, is that corroboration is required whether for a retracted or a repudiated confession, but since corroboration is not a requirement of the law, a court would be entitled to act on a retracted or repudiated confession if after considering all the circumstances it is satisfied that the confession cannot but be true." In the case before us the learned trial judge found the appellant's statement to contain truthful accounts. He said - " I am fully satisfied that the repudiated confession is true. Considering all the above, and alert and alive to the dangers of acting on such a repudiated confession and having found no such danger, I am fully satisfied that it cannot but be true." ,,, After considering the detailed nature of the appellant's caution statement, it was inevitable to come to that conclusion. That means the_ appellant was rightly convicted even without corroboration of his caution statement. 9 Turning from the caution statement, Mr. Mbise also challenged the credibility of PWl and PW3 on three fronts. First, he submitted that the evidence of PWl was in conflict with that of PW2, the police officer who recorded the caution statement of the appellant. In the caution statement, the appellant stated that there were three assailants including himself who attacked the deceased and not the appellant himself as testified by PWl. The second purported contradiction is the motive for the murder. In the caution statement, the appellant stated that the deceased was practicing witchcraft in the village whereas PWl testified that the appellant had told her that he murdered her grandfather because he had smoked bhang. The third piece of evidence which Mr. Mbise claimed was contradictory related to the instrument which caused the multiple cut wounds on the head of the deceased as stated in the post-mortem examination report. Mr. Mbise entertained doubts that a hammer could have ~' caused cut wounds on the deceased's head. We note however that the source of information on the first two alleged discrepancies was none other the appellant himself. More important however is the fact that both in the caution statement and in the testimony of PWl, the appellant admitted that he had murdered the deceased. These contradictions in evidence, if any, do not render the entire evidence incredible. It is only when a witness's evidence on material matters in the case is so irreconcilable that his/her whole evidence is to be disregarded. This ground of complaint is equally devoid of merit. In the result and for the foregoing reasons, we dismiss the appeal in its entirety. DATED at MBEYA this 24th day of August, 2007. D.Z. LUBUVA JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL I certify that this is a true co13y of the original.