20080714 TZCA Mbeya2

I. \ IN THE COURT OF APPEAL OF TANZANIA AT MBEYA {CORAM: lUBUVA, J.A., MBAROU~ J.A., And OTHMAN, J.AJ : ' CRIMINAL APPEAt NO. l42 OF 2006 YUSTAS KATOMA ........... , ................................................ APPELLANT THE REPu·suc ................................. J................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at $t:mbawanga) ·' (Mrg !'ri O. J .'\ dated the lOt!, day of July, 2006 in Criminal Sessions No. 66 of 2000 JUDGMENT OF THE COURT 30 June &: 14 July 2005 J:_USUVA, J,A.: This is an appeal from the: decision of the High Court I I (Mrema, J.) in High Court Criminal jAppea! No. 66 of 2000 sitting at Sumbawanga. The facts giving ri$e to U1e appeal may briefly be ,, i; stated. The appellant ;md the de.ceased ·were residents of Nkusi ,, Vi!laae within Sumba1,,:ano,3 D,strict.; Rukwa R.eaion, - .A '1 -· The appellant was married to the daughter . of thJI cider brother of the deceased. . I r On 16.3.19971 the .appeifant and the deceased le~ the house of the deceased for tie nearby village. of N,ankaf'\sa, for,-~a :local :.brev./ drink. T'hev bo::h rode on the deceased's bicycle. ,A.t the pombe shop, the deceased and the appellant together with others, including PWS, ::,artook th~: !ocai drink until about 5 p.m. when P\NS left for the deceased's home leaving behind the appellant and the deceased at the pomhe shop. It was the prosecutioP case that 5.cHne time after PVVS had tef. deceasecl 1,vhile on his wcry home. The deceased was brutaily attacked, he sustained several stab wounds 1n the chest and stomach cesuftmg tn his death. The dead body of the deceased was left by the side path leading to the village of the deceased. Thereafter1 the appe!!ant proceeded to the house of the deceased. He handed over the bicycle to the deceased's wives, rmaculata Tlti (PW3), Tatu <azin,oto arid Fen/a Kazibure. He told them tnat the deceased vvas the deceased (PW4) went about: !ookin<:! for the deceased. ln the nrocess, the bod',-' of tt1e deceased was found some where off the 3 oau-·n !eautng ~,.l· I. . .·usa ti;1•~ae ..ro N· 1,"-' I ", 1c- . T•,ie appe,.an ii t was arresteG · · oy · t.'h.e ' ln the course of investigation, the app,ellant was interrogated I i by Detective Sgt. Dionis (Fv\!1). As a result of the interrogatlon, it '.NaS furd·E·:· alleoed that the apJe[lant made a statement r,Exh.P4) in ~ I which he confessed to have killed the deceased together with others not subject of this appeal. The prosecution case ~-✓as ent1relv based on the alleged I . . Xh. P4' confession ir- the statement (E . P\.V L l, , :,1 to /\t the trial the aooeHa11t repudiated the st.at:emen'. alleging that it was made under torture, ft v;as not voluntary. ,JJ,fter conducting a trial within a trial, I I the !eamed trlai _judge was satisfied that the confessional s"..atement ( Exr1, P4) was voluntary and that ft was truthfui. Consequently1 the I appellant was convicted and sen~enced to death, He has preferred tr.rs appeal against the decision ofjthe High Court. 4 In this appeal, the appellant was represented by Mr. Mbise, !e.arned counsel, whr1e Mr. Mwenda, learned State Attorney, appeared for the respondent Republic. Mr, Mbise Aled a memorandum of appeal comorislng four grounds of appeal which in our view, in sum tctal amount to the following tv.;o grounds. Flrst, that the learned tr•al judge er-red in admitting thr; caution st2tEnent Exh. P4. Second, tne learned ,~iudue ,..., erred in convictina.., th 12 aµ·'r,dlant r' on t!K: uas:is of tile retrali:ed and or repudiated confession. Deai!no with the first around of complaint that tr,e caution if ~ '::tatEment, Exh. P4 \vas erroneously admitted in evidence, Mr. Mbise, r,:?.arned counsel, advanced the foHov,iinq reasons. First, that the provisions of section 57 (2) (e) of t1e Criminal Procedure Act, 1985 (the CPA) vvere not complied with. In e!aboration, Mr. Mbise stated that under the prov\sions of section 57 (2) (e) of the CPA a po!ice officer who inte:Niewed the appeiant who is alleged to have made a confession re!atino.... to the charae, __. should have indicated. 1n writina_. the time when the interviev.: was completed. He sald what was indicated in the statement is the time when the interview was commenced. 5 This, according to Mr. Mbise, was an irregularity which rendered the statc:rnent Exh. P4 :nadrnissib!e. Th~' reason, he saiu "vas th,~t the ;::-ovistons of section 57 (2) (~) of the CPA are mandatory because the word "shall'' has been used, A; f\·ir. Mbfse nau referred to tht: decision of the: Court ir-, Seko Samwei1 Criminal Appeal No. 7 of 2003 (unreported) we think it is desirable to make a brief observation on the case. it will be recalled that 1n a subsequent case Ramadhani Salum v The Republic, '.jirninai Appeal No. 5 of 2004 (Mwanza Registry) (unrepcrted) the C.ourt had occasior: to express 1ts views on lts decision in Seko Samwel (supra) and the import of the provisions of sections 57 and of the CPA. In Ramadhanl Safum (supf'.a) the Court inter a/fa stated: "We do not think, however, that this Court in the Seka Samwel case meant to !ay down that a caution st:ternent, which may also amount w a confession, could not be made under section 57 of the Criminal Procedure ·I r ' I 6 Act 1985. In fJct there is no such pronouncement . in either l the Seko Samwei or ---,, I', j TI1en the Court further stated: \ 'I I t "caution statements, µierefore, are not made ,, exclusively under sect(on 58 and Exhibit PS in ! this case is not any l~s a caution statement I merely because it was\ taken under section 57 and not section 58. ~, The circumstances in 'j which the two kinds 0~ caution statements are 1 taken are different, irhe one taken under section 57 may be bs a result either of I .-:(~. . ,l answers to questions] asked by the police i ,}j investigating officer o~. pertly as answers to questions asked kin~ partly volunteered I statements. The statement r, under section 58 is a result of a whblly I volunteered and unsolicited statement b'if the suspect." I In this case, although the ~tement Exh. P4 apparently was i! I made undei section 57 of the CPA, nevertheless it was in effect a caution. statement. j i Secondly, counsel urged. that the certification of the statement ,_ ' r-'~) u::xn. -,,, •oy t.'h e ponce ' 011ic1:1r l ,r. (DI,;0,1; I I • was no,.. done .1n accorcance . I ,Nith the lavv as set out undeti the pr,:,v1sions of sections 57 (4) (e) and 10 (3) of the CP.A. Foi this reason, counsel submitted, the statement should not have bken admltted In evidence. What is 1\.~h- more, Mr. 1·1,,ise went on m ,,!S j_su,b m1ss1on, . n· ; ' . -' d id not th1 e Iearned Juuge I address these serious irregularities ln the rroceedings. . ,r. Mb' 'M ' dearc.• wi'th, , ano . 1se a1so \ t'tier serious l . . I .,_ 1 m 1rreau.anl\ ~ I t'mn ' re.a I t,) the c,1ut!ori statement Exh. 1P4. In his vlew, in terms of the ;:,rovisionS:. of section 58 of thk! CP/\. t'1e statement Exh. P4 is . . l . serious1v flawc-c in that it vvas taken by way of questions and . I enswers Tnis: ·he said was contrary to the spirit behind the orovtslons of section 58 of the CPf' In support of this submission, referred te the ·dec!slon of the Court in Se,ko Samwe! v I Repu,bHcr (supra). Because of \this irregufarity, Mr. Mblse urged I that the st.atement (Exh. P4) should be discounted. With the evidencE'. based on I the statement discounted, I I I E ,::ounse! rn2intalned that there would be nc cogent evidence left uoon which to sustain the corwiction against the appellant Mr. Mwenda, learned State Attomey 1 for the respondent Republic, ,vho did not support conviction was generally in agreement w!th Mr. Mbise on thesr::: submissions with reoard -· I to the statement, Exh. FA. However, M1. Mwenda, un!ii<.e fvJr. Mbisc, was of the vir:.:v~ that the: staternent Exh. P4, Vits prop-2rJv admitted in evldence in hf1 was quick to point out that notwithstanding the admissibility of the statement, because of the other irregularities relating to the statement as elaborated by Mr. Mbise, its evidential value was questionable. That is that the weight to be attached to the statement ts the crux of the matter particularly if it is doubtful that it was voluntary. submissions relating to the adrnissibii/Ly or othervvise of the caution statement Exh, P4 ln evidence. It wHJ be recalled that the complaint I 9 raised In thfs ground is that P\V1 did not indicate the time when the , . . mterv1ew en d,ed. as pmv1ae .' d r7I d sectron er . _,/ (2\ . (e.1' o f , r;- J tne CPA. Failure to do so, accord1ng to Mr. Mbise, rendered the caution I statement Exh. P4 of' no evia1nt1a! value it should not have been \,l!ith , · ' - a'n nnr- .::inrc.r, r.n<;noct•f 1:,;c -..V,_., ¾'--...,{•""- V?f\,_,_, ""'8 Witr, " •. r-1,.- , ...,.\, ~ ji\lJh,i,;;e, '-.. .. , .... ;-,1"1d - • Mr , Mv cnd;;~ ,\f',..,; 1 I on this point. It :s elementary ,at section 57 of the CPA as a whole, SEts out the procedure to be followed by police officers when r~ r<ecording Interview with a per~on for the purpoSe of ascertaining w~ether the person ~ommitted offence. We do.. not think_ that . rauure tW tne recorrnna police ofrn::er to comory wn::r1 any or the ~ I . ~ liflu'.J ,-::;.r .....,p" ., ' ,-..:,r;, '!rF,rY>, ;·,nt ''·'"IV--~.,, ,. . r ;,,- ·, i'() .... V·'! . .... .__ I\t': "·" 1'- ' - . .se-r-t--,,·o·, . ,, ',,,.~-./ 1'' . ·L•, \ ,I ,. r. ,IL. o· ( 'i'1)P ~ L /...' nor,:,c5.::.r,'1V ~- .... ~ - - - ' 'cnderec t.he stater:1ent invaiid simply because the word "shaH" is I u~.:ec. unoer ' t11e ' prn111s1on ,. . I ~·-. sect1or,, ,·1, , -. "' , rp" i b )! l,} (e,1 o, me"" , .,_ as urgea 'Y ;\ 1 1t ¥ t\·1 b!se. ! I We say so because it is common knowledge that not in every Situation that the word "shall" ;s Urd that a mandato.ry requirement 10 ls imposed. It is mandatory on!y in so far as the requirements that go to the root of the matter. Irr this case we do not think that failure through inadvertence on ttie part of PW1 to Indicate the tlme when · the interview was completed is an irregularity that goes to the root of the matter such as to affect the validity of t'"le statement, Exh. P4. ,,;terview1n<; th.:.: appellant That he ended th':: interview at 9.30 a.m. So, it is our view that the caution s--i.atement v-.1as properly admitted in ev'idence at the trial. We find no merit in this ground. On the other hand, vve are unable to accept Mr. Mbise's submission that the caution statement (Exh. P4) was rendered invalid ori account of the fact that the certification at the end of the ,::PA. The reason is simple,. narneiy th<1t t11e provision of this section cf the CPA does not apply to the instant caSe, From our reading of section 57 (4) (e) of the CPA, it is plainly clear that the section applies only when the person Interviewed ls unable to read the record of the Interview or refuses to do so, In this I case there ls no evidence to shciw that the appellant vvas unable to read or refused to read the reco\d of the i.nterview. ks a matter of fact, from t12 recordr at page 51\ it ts loudly clear that the appellant 1,•;as able to read and write. In tMat situation, Mr, Mbise's contention I ~\.,a;.. 1 v. · 1.. t-h ...._,.+-, ,;. ~·. ,~l0,.,E.rne. v. ,,~ F- ,i.•.,. k ,_x, -t ;;,n·o PA ..; , urd 1 \...s:i u~ d'<: Lcoun t~d c f..a.,s. j !' Ast' $3\C .. I I . Next ML Mbise extensively made submissions on the ground -:l"1at the tria! judge erred in con1/icting the appellant based on a retracted and or repudiated confession Exh. P4. As the whole case I I was based on circums'-tantia! evlcfen'ce 1 it was highly unsafe to sustain n~e conviction based on tile a!!egkd confessional statement which t1as conslscentiv maintained that the cauUon stcternent vva·s ·• .. ,-r1ade under duress, the aooel!ant lvas not a free agent. Mr, MbiseI . submitted. in that situat!on, Mr. Mbise I went on in his submission., it I was imperative for t1"1e !earned judge to examine closely the circumstances under which the cautldn statement was made. I 1· Furthermore( Mr. Mb!se also· submitted that once it is shown that the statement was made '.vhen the appei!ant was not a free agent1 the trial judge shouid not have relied on the statement as a basls for convicting the appellant. Tn this case, Mr. Mblse urged, as the s+-..,aternent Exh P4 was recorded by PWl under section 57 of the I (.' 0 A bi vilay ndestions 2 2f':svvers 1 ft en the inltiatNe ofthe appellant. Rather, ne further stated, it was initiated by the oolice (PW1) in which case, it Is doubtful that the appef!am was a free agent when he made the statement Regarding the surrounding circumstances under which the 2,ppeiiant made the alleged confession, Mr. Mbise wondered why the -::e!ay in interrogating the appellant from 20/3/1.997 until 23/3/1997, .:nurt should not lose sight of the fad that the appellant had been Jnder torture of the militia under whose custody he had been from 18/3/1997 until 20/3i1997, when he was handed over to the pofice. Sucri unexplained delay and the a!Ieged torture, Mr. Mblse stressed, were sufficient factors upon vvhich the learned judge should have 13 . I taken as indicators.that the statement I 1,,vas not free!\:T and voiuntarilv, ,,1i rnade. I I I Then Mr. Mbise, dealt with t~1e legal requirement with regard to ;1, a repudiated or retracted confes~ion. In this case, the appellant having repudiated the caution statement (Exh. P4) the iearned trial 11 judge should not have convicted !fthe appellant on the basis of the I cautioned statement without corrpboration. If we understood Mr. Mbise, the thrust of his submiss6n before us was that once the s'"catement Exh. P4 is discounted al he urged u·s to do in this apoeal, then there would be nothing as It ~Jere, to be corroborated. On the 11 !1 other hand. he said, even if the ca:~ition statement was retained, the evidence of PWl and PW2 who didI not see the . aooel!ant , . kif line~ the ,, deceased, was wrongiy taken by tre ! 11 trial judge as corroboration to 11 the statement. I I " • I Finally, Mr. Mbise sought to ~pult the learned trial judge in his 11 summing up. to the assessors.· Accdrdino I to him,- it was erroneous on ~ the part of the learned judge tJ direct the assessors that the I . I I I I ,, I !4 standard of proof in a cr1m!nai case based on circumstantial evfdence the s'"...andard of proof is higher than that in cases based on direct !'?vidence. He urged the Court to aUow the appeal. Mr. Mwenda, learned State Attorn~y, for the respondent H,:'"ouh!ic1 as was the case with t'H~ first grnuncL was in gem:ra! agreement vvith Mr, r•1bise, In declining to support the conviction he added saying that the evidence of PW2, the Ward Executive Officer vias unre!iabler ft should not t1ave been taken as evidence corroborating the caution s'"...atement (Exh. P4 ). . The reason he said ,\.,as that PW2 was mereij.' told of vvhat he testified in court by the a:)peilant. Uke Mr. Mr)isc, the State Attorney also criticized the trial judge ir, misdin?.cting the assessors in his summing up on the si:andard of proof in criminal cases based on circumstantial evidence. We shall first deal v._1fth the alleged misdirection to the • assessors. From a cursory glance through the record at page 96 it is at once evident that both Mr. Mbis2 and Mr. Mwenda are correct in their criticism against the learned trial judge's direction to the 2:ssessors. It Is on record that the !earned judge directed the assessors that the standard of nrbof in a criminal case based on cin::ums--i.antla! evidence is h[gher than in cases based on direct evidence. With respect, this is not correct. It is common knowledge that the standard of proof in all criminal cases is to the same st...andarcL That the burd,::'l is alway:, on the prosecutic:-, to prove its case beyond all reasonable doubt ' l:: is our vie'N that despite this mrsdirection, we do not think that trie assessors opinion was affected. Had they been influenced by the judge's direction on this point, we are inclined to the view that the standard of proof having been stated to be higher in a case :such as this, the end result wou!d wdl have been an acquittal which was rot The next. issue which ha::: exercised our mlnds considerably is whether the caution statement was voluntary as held by the trial judge. In order to ascertain that the statement (Exh. P4) was ; 16 • voluntary, the learned trial judge he!d a trial within a trial. From the evidence. adduced at th€ triai wlthin a tria1, the learned judge was settled fn riis fin1Jlng that the statement was voluntary and that the 2 :lpe!!ant was a free agent Upon our O'tm evaluJtion 1:,f the ev!dencr: of PWl, the potice uffa.:er V-.ihO inlerviewed the appe!!ant and recorded the statement, and PW2, the Ward Executive Officer, we can find no ground to fault tne tria1 judge in h1s flndin9 t11at PVVl and PW2 were credibfe witnesses. The assertion of the aopellant is that he was tortured by the mJHtia from the time he was arrested and kept under their ~~.ustcdy -From 17 i1.9S7 20/3/:997 'lihen he was handed over t.:, tne r;011Ce. Neither does he say that he was tortured at the time i·,e was in poiice custody when the statement \Vas made nor ls there :my evidence suggesting torturE.\ inducement, threat or promise held out to hfrn, On the other hand, even if it is accepted that the appeHant was subjected to torture at Nankanga Village by the militia • vvhen he was arrested on 17/3/1997, the confessional statement to PWl was made much later on 24.3.1997 when there was no ground 17 • for fearing the militia before PWl, a police officer. On this, the learned trlai judge properly addressed his mlnd when inter aiia, he stated: Both P\N1 and PVv'2 said that the accused . . ,'.t kiileri deceased. Fh::5€ confessions were made in the absence of the Village Vigilante Nankanga Viliage, who are alleged to have tortured or threatened the accused. Even if the a!ieged tortures, threats or injuries were true, there is no fink beh-.'een their occurrence and the subsequent confessions to PWl and PW2. i "; this light we think the !earned tria1 judge cannot be faulted in his f:nding tnat PWl and PV/2 were truthful anc1 that the statement. Exh. P4 was voh.mtary and true as we!L Having found PW1, and PW2 as witnesses of truth and that the ·. J • statement Exh. P4 was but truthful, the question arising is whether the court could convict upon the repudiated confession? This, we think the learned trial judge addressed at length .. He was guided by IS • what we think are now·settled principlefoflaw :regarding repudiate·d · and or retrncted confessions. He took guidance from the often quoted cases by the erstwhile Court: of Appeal for Eastern Africa of Tuwamoi v Uganda (1967.) EA 84 ·and the deeision of this Court in Hatibu Gandhi and Others v Republic (1996) TLR 12 among others. In Tuwamoi (supra) it was stated: A tila! court should accept with caution a confession which has been retracted or repudiated or both retracted imd repudiated and must be fully satisfied that in all the circumstances of the case that the confession is true. I ,, .· :/4i · ... ' .. . ,?ftj . The learned judge was also live to the danger of convicting on the oasis of repudiated a·nd or retracted confession as can be seen from his summing up to the .assessors. The danger of acting on such l . l ",;:,\ 'At C/t )J: '' . !,< confession was underscored by thls court in Hemed Abdallah v .,, R_epublic .(19?5) TLR .172 when, arpong other :tl1Ings Abe Court stated: • Generally lt ls dangerous tc act upon a repudiated or retracted confession unless lt ls corroborated in material particulars or unless i the court, after fu[! tonsideraticn of the circumstances, !s satisfied that thr:: confession r.1ust but be true. I ;:JthoJgh the: !:=:arned ,iudoe .. , as 1·ust ~ observed vvas live to the need for warning t11mself of the danger of 2cting on uncorroborated, retracted. confession 1 (Exh. P4) there was, I ;:;s Found, corroboration In the evidence of PW1 and PW2. Furthermore, the trial judge upon evaluation of the particular circumstances of the case was satisfied that the caution statement ' I Cxh. P4 was but true. It tames with the evidence of PW2, the Ward ,~Y:ecutiv\::· Offker to whom the aopellant admitted that he .particioated , I ' I in killinc the deceased bV ho1dinc the hands of the deceased whHe ~ J ' i the others he!d the legs tightly. If the appellant had not partfcipated, now was he able to give such details to PW2. 20 • In t'iat situationr we are with respect to Mr. MbJse, !eamed counsel for the appet!ant and Mr. Mwenda, !earned State Attorney, the resoondent RepubHc, unable to 90 along with them that the :earned judge erred in finding the appellant guilty of the offence chargecL An in ail therefore; con,;ldering the ert1re circumstances of the case, nameiy, that the appellant went out to the pombe shop from the deceased's house riding the deceased's bicycle; the fact that the appellant iied about the bicycle; the appellant coming back to the c::;eceased house reporting that the deceased was on the way back the pombe shop; the appellant was tr1e last person seen at the po10t)e shop with the deceased; the appellant's confession to PW1 :,:mfess:onai statement of the appellant {Exh. pt.:;) which was found try the trial judge voluntary and true, we are satisfied that the conviction of the appeiiant was justified. 1 . ,. 21 In the event, we find no ;merit in the appeal which is accordingly dismissed in its entirety.. DATED at MBEYA this 14 th day of July, 2008. D.Z. LUBUV A JUSTICE OF APPEAL ! {} M.S. MBAROUK JUSTICE OF APPEAL -'-i M.C. OTHMAN . I , JUSTICE OF APPEAL -,~ . . - ! certify that this is a true copy of the original. ' . ~ .. , •-••1·--_,?~-- ti:, ,~ ,, ,:·" .. :·~. ~ ,, .~'."! -~ i I . ~;: ., . I' ~ ,---· ,;.:,. -- . ; '., [REGISTRAR I) L/ . j .'. ., . :' •..· 1 }-?;;· .