20080530 TZHC Dar es salaam

_f IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LUBUVA, J.A., NSEKELA J.A. And MBAROUK, J.A.) CRIMINAL APPEAL NO. 78 OF 2007 1. ZAKAYO SHUNGWA MWASHILINDI} 2. RAIS SHUNGWA MWASHILINDI ... APPELLANTS 3. ABELi MWAMWEZI VERSUS THE REPUBLIC ........................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Mrema-, J.) dated the 31 st day of May, 2005 in Criminal Sessions Case No. 35 of 2000 JUDGMENT OF THE COURT 23 August 2007 & 14 July 2008 NSEKELA, l.A.: __ _"T_he three appellants, Zakayo Shungwa Mwashilindi; Rais Shungwa Mwashilindi and Abel Mwamwezi were convicted of the murder of Eniko s/o Samson Simkoko. The murder was alleged to have taken place on or about the 19.1.1999 at Isenzenya Village, 2 Mbozi District. Briefly, the case for the prosecution was that on the 17.1.1999 one Evan Sokoni Sikapizye, (originally the fourth accused person, whose case abated on his death), persuaded Eniko to accompany him to the first appellant's village to work as farm labourers. They arrived in the evening. Since it was already dark, they spent the night in one of the second appellant's houses. Apparently, the first and third appellants went to the second appellant's house where the deceased Eniko was spending the night. The deceased was allegedly brutally murdered by the three appellants, skinned and then buried· in the bush. Afterwards, the third appellant proceeded to Vwawa to look for human skin buyers. He lodged at Tumaini Bar and Guest House where they were arrested before selling the human skin. The prosecution mainly relied on the cautioned and extra- judicial statements made by the appellants to PW1 No. C.6987 D.Sgt Edward; PW4, ex-police No. B.8547 D/Sgt Ivo (exhibits P8; pg and P10). In the said statements the appellants made full and detailed confessions as to their participation in the murder. Subsequently, PWS, Louis Mathias Kalenzi, a Justice of the Peace, recorded the 3 extra-judicial statements of the three appellants. The three statements were admitted in evidence (exhibits P11; P12 and P13). All these cautioned and extra-judicial statements were admitted in evidence without any objection from Mr. Mushokorwa, learned advocate. When the appellants made their respective defences, each appellant testified that their respective cautioned and extra-judicial statements were a product of torture. In other words, they were not - voluntarily made accordi~ng to law~ but extracted through- brutal"~ torture. After evaluating the evidence as a whole including the cautioned and extra-judicial statements, the learned trial judge found the appellants guilty of murder and convicted and sentenced them accordingly, hence this appeal. At the hearing of the appeal, the three appellants were represented by Mr. Mushokorwa, learned advocate and the respondent Republic was represented by Messrs. Mwenda and 4 Malata, learned State Attorneys. Mr. Mushokorwa had a sole ground of appeal having abandoned the ?econd one. It reads as under - "The convictions were bad in law, based as they were on circumstantial evidence which did not measure to the required standard, this including mainly retracted and uncorroborated cautioned and extra judicial statements which were obtained/recorded in abrogation of the law." In elaborating on this sole ground of complaint, Mr. Mushokorwa sub-divided it into three ar.eas. The first limb of complaint was to the effect that the interviews by the police were unlawfully made since the appellants were interviewed after the expiry of four hours contrary to sections 50(1) and 51(1) of the Criminal Procedure Act, Cap 20 RE 2002 (CPA) and there was no application made for the extension of that period. Consequently, he -- submittea, tne-confessiorial statements should not have been taken into account. In the absence of these statements, there was no other evidence before the court to warrant the conviction of the appellants. 5 Mr. Mwenda, learned State Attorney, conceded that the case for the prosecution was to a large extent dependent upon the appellants confessional statements. However, he maintained that these statements were admitt-ed in evidence without objection from Mr. Mushokorwa. If the learned advocate had objected to their admission in evidence, a trial within a trial would have been conducted to establish their voluntariness. It is true that sections 50(1) and 51(1) of the CPA provide for a time frame within which a pers_on who is in restraint should be interviewed. They provide as follows - "50 (1) For the purposes of this Act, the period available for interviewing the person who is in restraint in respect of an offence is - (a) subject to paragraph (b), the basic period available for interviewing the person, that is -- - - - - --- ---- -- - - -- ---to say,- the period of four hours commencing at the time when he was taken under restraint in respect of the offence: 6 (b) if the basic period available for interviewing -· the person is extended under section 51 the basic period so extended. 51 (1) Where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence and it appears to the police officer in charge of investigating the offence, for reasonable cause, that is necessary that the person be further interviewed, he may- (a) extend the interview for a period not exceeding eight hours, and inform the person accordingly; or (b) either before the expiration of the original period or that of the extended period, make application to a magistrate for a further extension of that period." __ O!:)_t~E: face of itL thjs is an attractive argument, but we are not persuaded by it. Section 169 of the CPA provides in part as follows - 7 ( "169 (1) Where in any proceedings in a court in respect of an offence, objection is taken to the admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, or a failure to comply with a provision of this Act or any other law, in relation to a person, the court shall, in its absolute discretion, not admit the evidence unless it is, on the balance of probabilities, satisfied that the admission of the evidence would specifically and substantially benefit the public interest. without unduly prejudicing the rights and freedom of any person. (Emphasis added) (2) (3) The burden of satisfying the Court that evidence obtained in contravention of, or in consequence of contravention of, or in consequence of the failure to comply with a provision of this Act should be admitted in proceedings lies on the party who seeks to have the evidence admitted." 8 From the court record, it is plainly obvious that when PW1, No. C.6987 Det.Sgt. Edward tendered in evidence Exhibit P8; PW4 ex- police No. B.8547 Det. Stg. Iva tendered in evidence Exhibit pg and P10, Mr. Mushokorwa did not raise any objection to their admission in evidence. These were the cautioned statements of the appellants. Then PW5, Louis Mathias Kalenzi, a Justice of the Peace tendered in evidence the appellants' extra-judicial statements exhibits P11; P.12 and P13, again without a voice of protest from Mr. Mushokorwa, learned advocate, on the ground that they contravened sections 50(1) and 51(1) of the CPA. Since there was no objection from the appellants' learned advocate, the prosecution was not called upon to invoke section 169(3) of the CPA. It is too late in the day to allow Mr. Mushokorwa to raise an objection at this point in time, on appeal, something he should have done during the trial of the case. We are of the settled view that section 16-9(1) of the CPA did not come -into play in -fhe circumstances of this case, and therefore the cautioned and extra-judicial statements made by the appellants and recorded by PW1; PW4 and PW5 cannot be expunged from the evidence under section 169 on the ground that they were ,made in 9 contravention of sections 50(1) and 51(1) of the CPA. There is no merit in this complaint. The second limb of Mr. Mushokorwa's complaint is that the appellants extra-judicial statements were not made voluntarily. The appellants were allegedly subjected to torture while in police custody when they made the statements. On the other hand Mr. Malata, learned State Attorney, submitted that the alleged injuries were sustained in the process of arresting the appellants and not when interviewing them ...The general principle i~ that a confession by an ~ • -·--,:- -- ~ ""- - -- accused before his trial can only be admitted against him if it is proved to have been made freely and voluntarily. If it is involuntary, that is the end of the matter and it cannot be admitted. (See: Criminal Appeal No. 10 of 1995 (1) Richard Lubilo (2) Mohamed Seleman v The Republic (unreported); Criminal Appeal No. 21 of 2000,- -Ernest s/o Chacha @ Henche and 5 Others v The ---··· ------ Republic (unreported). We ask ourselves, how is the court to determine whether or not the appellants were indeed free agents when the statements were recorded. The case of Hatibu Gandhi @ Capt. Hatty Macghee and 8 Others v R (1996) TLR 12 at pages 36G to 37A, this Court provided useful guidance in the following words - "In our considered opinion, the issue whether or not the particular appellants pretended to be free agents before the magistrates, cannot be resolved in a court of law by other means except by reference to the conduct and physical appearance of the persons concerned. Only the Almighty God, or perhaps those who -claim "to have what is known in psychology as Extra Sensory, Perception (ESP), can tell directly what goes on in another person's mind without reference to the conduct or physical appearance of that other person. For most humans, including this Court, what goes on in the minds of another person can reasonably be ascertained only by reference to the conduct or physical appearance of that person. In the present case, since the appellants who made the extra-judicial statements made it known to the magistrates that they were free agents, no reasonable tribunal can find 11 otherwise, unless there was something in their physical appearance or conduct which was inconsistent with being a free agent; or unless there is cogent evldence to show that they were tortured while in custody before being taken to magistrates." (Emphasis added). PWS, Louis Mathias Kalenzi, a Justice of the Peace, recorded the extra-judicial statements exhibits P11; P12 and P13 in respect of the first, second and third appellants respectively. He testified that he complied with all the requirements of the- law before -recording their respective statements. He asked whether each appellant was giving his confessional statement voluntarily without any pressure from anybody. The answers were in the affirmative. Thereafter the statements were recorded and read over to them. They admitted to be correct and signed them. The statements were tendered in evidence during the trial without objection from Mr. Mushokorwa. After the statements had been read out in Court, the learned · advocate during cross-examination raised the question that the appellants had been subjected to torture while in police custody. He 12 strenuously contended that where torture is established, then the statements were involuntary and should not have been acted upon by the trial court, citing a decision of this Court, Thadei Mlomo v R [1995] TLR 187. With the greatest respect to Mr. Mushokorwa, we have no quarrel with his exposition of the law on this point. Indeed in an earlier decision, Criminal Appeal No. 215 of 1992, (1) Brasius Maona (2) Gaitan Mgao v R (unreported) this Court held, inter alia, that it was improper for the trial judge to admit the statement particularly after it was established to the satisfaction of the Court that torture had been applied in extracting a statement from an appellant. The Court added that once torture has been established, courts should be very cautious in admitting such statements even under section 29 of the Evidence Act which was not meant to apply in situations-where the inducement involved is torture. As mentioned before, the learned advocate inexplicably did not raise any objection when PW5 tendered in evidence exhibits Pl 1; P12 and P13. This meant that the voluntariness of these statements was 13 not made a subject of judicial inquiry in a trial within a trial. In the absence of any objection to the admission of the statements when the prosecution sought to have them admitted, the learned trial judge could not, suo motu, hold a trial within a trial to test the voluntariness of the extra-judicial statements. (See: Criminal Appeal No. 79 of 1999 (1) Steven s/o Jason (2) William@ Batharuheka @ Kajambo s/ o Kanani (3) Kekiria d/ o Samson v R (unreported). In an earlier decision of this Court, Criminal Appeal No. 30 of 1986, Emmanuel Kanyogozi v Republic, (unreported) this Court stated thus - "A trial within a trial could not be held when the retraction was first indicated in this case, that is when the appellant was testifying, and in any event, it would have served no useful purpose. The defence had all the opportunity to object to the admission of the statement. They waited until the end and belatedly sprang a surprise. To accommodate them by ignoring the extra-judicial statement already put in without objection would be to open the floodgates" ( emphasis added). 14 With respect, like the learned trial judge we are of the view that the appellants' defence was an afterthought and we accordingly reject it. We now come to the third and last limb which concerns the question of corroboration. The complaint was to the effect that there was no independent evidence corroborating the cautioned and extra- judicial statements., Mr. Mushokorwa contended that once the statements are excluded, there was no other credible evidence to ·· warrant the appellants' convictions. He added that the testimony of PW2 could not be relied upon since she had an interest to serve; the rest of the evidence was suspect since it came from police witnesses and that the appellants did not show the grave, since they were in a group of people. Mr. Mushokorwa seems to be suggesting that since PW2 was a close relative or the deceased, a family member and was therefore -·· ---- -- highly interested in the conviction of the appellants. Admittedly, PW2 was a relative of the deceased but that by itself cannot be a ground for rejecting her otherwise credible evidence. What is important is \J 15 the credibility of the witness - that he/she is stating the truth. So were the police witnesses. They were competent witnesses to depose to the facts seen by them. It is trite law that every witness is entitled to credence and must be believed unless there are good reasons not to believe them. As regards corroboration, it is now settled law that 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 of Tuwamoi v-Uganda [1967] EA 84 the then Court of Appeal for Eastern Africa stated as fol lows at page 91 - "We would summarise the position thus - a trial court should accept any confession which has been retracted or repudiated or both r-etracted and repudiated witl:l caution, and ---must before conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the -- "...,! 16 confession if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a ~confession alone if it ·is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true." (Emphasis added) In the present case, the trial court found enough corroborative ~--~· evidence in support of the appellants' confessions. For instance,~ the -"~ testimony of PW2 supports the first and second appellants assertion that the deceased was taken to Isenzenya Village to work in a coffee farm. Similarly the evidence of PW3 that he was consulted by the first and third appellants for possible buyers of human skin; the testimonies of PWl and PW2 that it was the appellants who led the police to the spot-where the deceased's body was buried. After considering the detailed nature of the appellants' statements, it was inevitable to convict them on the strength of their confessional statements. Apart from that there was additional corroborative evidence as explained above. 17 In the result and for the above-mentioned reasons, we dismiss the appeal. DATED at DAR ES SALAAM this 30 th day of May, 2008. 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 copy of the original. f5_Jj)~- (F. L. K. WAMBALI) REGISTRAR