20091030 TZCA Tabora

I I IN THE COURT OF APP AL OF TANZANIA ATTABdRA .........,.______...,;:;;...-;;.;..a i I {CORAM: KIMARO. l.A.• MBAROUK. b.A.• And MASSATI. J.A.) I CRIMINAL APPEAL NO. 157 OF 2006 . , 1. A. 9249 WDR KALOLI SYLIVESTER 2. IDD NKANA@ MLUMBILI -. 3. KAMBALA ISAKA@ KAFUKU Jl MGENZI } : ······•!··· APPELLANTS 1 '' I VERSU I I :1 THE REPUBLIC ································••·••······················•• RESPONDENT (Appeal from the ludgme1t of the High Co~rt of Tanzania at \abora} {Mziray• .11.} dated the 9 th I d~y of! March, 2006 , m i I Criminal Appeal Nos. 65. 66. and 67 ·of 2002 I JUDG=~~~=~-~r::OURT 26 October & 2 November 2~09 MASSATI, l.A.: ' Ten years ago, on 23 rd Februa , 1999 at about \ 8.00 p.m. a shop belonging to one SAIDI 5/0 ISS~ KAMBENGA of Ibembe Village, in Urambo District, Tabora Region, wa1 broken into by '.armed I bandits I and various items from the shop and some money_ all totaling Shs. - I I I I I ~- ,, ~ 2 ,! 4,226,400/= were stolen. Investigation led into the arrest and arraignment of 8 persons including the appellants herein. The suspects first appeared in the Resident Magistrate's Court of Tabora on 6/4/2000. In a judgment dated 13/3/2001, the appellants, who appeared as the 4th, 1st and 3rd accuseds' respectively in the trial court, were convicted as charged and sentenced to 30 years imprisonment and 12 strokes of the cane. Five years later their consolidated appeals to the High Court were dismissed entirely. Against that finding of the High Court, they are now appealing to this Court. The first appellant's memorandum of appeal contains 6 grounds, the second appellant's has 4 grounds, whereas the third appellant's has 5 grounds of appeal. In a nutshell, all the appellants challenge the lower courts' findings and evaluation of the evidence leading to their convictions. They· did not have much to add in elaboration of those grounds in Court. 3 Mr. Bulashi, learned Senior State Attorney, who represented the Respondent/Republic did not support the convictions of all the appellants for the reasons that; first the identification of the 2nd and rd 3 Appellants was not watertight, as the tests enunciated in WAZIRI AMANI vR (1980) TLR 252 were not met; second; the absence of the report of the ballistic expert on the use of the gun, allegedly used by the 1st appellant weakened the prosecution case, and lastly the 3rd appellant's retracted cautioned statement was suspect and unreliable. When asked by the Court as to the probative value of the khanga allegedly found in the car said to be driven by the 2nd appellant, Mr. Bulashi said that the khanga had no special marks to identify them as PWl's property. On the effect of the retracted cautioned statement of the 3rd appellant the learned Senior State Attorney, submitted that such evidence ought ordinarily to be corroborated, but since the corroborative evidence of PWl and PWS was suspect and weak, it could not corroborate. From the facts as found by the courts below, we think there is no dispute that PWl 's shop was broken into and robbed, and that a 4 gun, was used in the robbery. Amongst the items stolen were 8 pairs of khanga; 6 pieces of bedsheets, one weighing machine, one wall clock, 10 aluminium pots, shoes, 18 pairs of kitenge, one radio cassette Panasonic ( 4 band), one foam mattress, 2 pieces of gold rings and 2 pieces of gold chains. It was alleged that in the robbery a gun make SEMI AUTOMATIC RIFLE (SAR) was used, and a land rover registration No. TB 4564 was used to convey the robbers to and fro the scene of the crime. There was also no dispute that in the course of the robbery, SAIDI ISSA, JUMA SAID KAMBENGA and JUMA CHAKE sustained injuries. It was further established that on the material time, the 1st Appellant, a prison ward was stationed on guard at Kazima livestock camp; and was armed with a gun and 10 bullets. There is also no dispute that the 2nd appellant was a driver in charge of a 110 landrover pick up, Registration No. TB 4564, ferrying passengers from Nzega and Tabora. The car belonged to one YESAYA SHANGILA. The issue for determination before the trial and the first appellate court was whether the Appellants could be linked with the 5 robbery. As seen above both courts answered that issue in the affirmative. The issue before this Court is whether, the lower courts properly evaluated the evidence connecting the appellant with the robbery as to justify their convictions. In dismissing the 1st appellant's appeal, the first appellate court relied on the facts that the appellant was missing from his duty station between 7.45 p.m. and 10.00 p.m. and that when he came back his gun was smelling of gun powder; which suggested that it was used. Further, the appellant did not report for duty the next day. The first appellate court also relied on the Appellant's cautioned statement. As pointed out above, Mr. Bulashi's view was that PW3 was not a ballistic expert. So his evidence on this. aspect had no weight. We, respectfully agree with Mr. Bulashi that PW3 was not qualified to give an opinion on whether the gun had been used or not. We say so because that is a question of science; that is why the 6 gun had to be sent to the ballistic expert and the Government Chemist to determine the same. All that PW3 said was: "We counted the bullets. There were 10 - 1 smelt and felt gun powder." He did not lay down what qualifications he had to be able to give such an opinion as demanded by section 47 (1) of the Evidence Act. Such competency should in all cases be shown before such evidence is properly admitted (See GATHERU S/O NJAGWARA vR (1954) 21 EACA 384). Furthermore given that the 10 bullets that were issued to the Appellant by his office were not used there was no link between the use of the gun (if at all) and the 6 empty cartridges (Exh. Pl0) picked at the scene of the crime. Only the ballistic expert's report which was not tendered in court (although available) would perhaps have provided that link. The second piece of evidence considered by the first appellate court, was the appellant's cautioned statement (Exh. P7). The two lower courts found that the cautioned statement contained nothing 7 but the truth. However, the Appellant contended that it was obtained through threats, promises and torture. It took "a trial within a trial" for the trial court to get to admit it as evidence. In passing, we wish to observe that the procedure of "trial within trial", does not obtain where the trial proceeds without assessors. All that a trial court has to do in such a case, is to make an inquiry as to the voluntariness of the alleged cautioned statement. Be that as it may, once an accused alleges torture or any impropriety in extracting such statements, the law regards them as retracted confessions. Though not a matter of law, once retracted, the court would normally look for corroboration before acting on such evidence. In TUWAMOI v UGANDA (1967) EA 84, it was held that it was dangerous to rely upon a retracted confession in the absence of corroboration, although the court could act on it, if it was fully satisfied that the confession must be true. But was Exh. P7 nothing but the truth as the lower courts had found? To get to the answer to the question, we looked at Exh. P7 and the rest of the evidence tendered in court. According to Exh. P7 the 8 ~ I Appellant repeatedly mentioned one ABED as a co conspirator in the crime. Based on such revelations and description, PW7 hunted for and arrested the said ABED, who appeared in court as the 8th accused. However, at the end of the trial, the 8th accused was acquitted. With the acquittal of the 8th accused, could the weight of Exh. P7 remain the same? We think not. We think the acquittal of th the 8 accused puts the alleged truth in Exh. P7 in question. It cannot be relied upon. Had the two courts below adverted their attention to this discrepancy, we believe that they would not have come to the conclusion they did in evaluating the weight to attach to Exh. P7. They would accordingly have warned themselves against the danger of acting on such evidence without corroboration which they did not. In the circumstances, we think that the conviction of the 1st Appellant was against the weight of the evidence and therefore unsafe. The only evidence against the second Appellant, was according to the two courts below, that of visual identification. The courts 9 found that the Appellant was unmistakenly identified by PWl and PWS, as the conditions for identification were favourable. Mr. Bulashi opined that the visual identification was problematic as not all the conditions set in WAZIRI AMANI vR (supra) were met. It is now beyond rational controversy that where the evidence alleged to implicate an accused is entirely that of identification, that evidence must be watertight to justify a conviction (See MWALIM ALLY AND ANOTHER vR Criminal Appeal No. 39 of 1991 (Unreported). In WAZIRI AMANI's case this Court warned: "No court should act on evidence of visual identification unless, au possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence is watertight. The following factors have to be taken into consideration; the time the witness had the accused under observation; the distance at which he observed him, the conditions in which such observation occurred for instance whether it was day or night (whether it was dark, if so was there moon 10 I I light or hurricane lamp etc.) whether the witness knew or had seen the accused before or not." ' In Mohamed AUui v Rex (1942) 9 EACA 72, which this Court has unfailingly followed, it was held: "In every case in which th~re is a question !as I to the identity of the accused, the fact I of there having been a description given and the terms of that description are matters of the highest importance of whjch evidence ought I' always, to be given, firstI of all ... by the person or persons who g1ve the description r and purport to identify th~ accused, and tt;len i by the person or persons to whom the description was given." I .I The Court also went on: "If that description is rec~rded at the timr in an Occurrence Book, diary or any other form of writing, such bo~k or writing shbuld be put in evidence if adm ~ssible ... or be ~sed 1 11 for the purposes of refreshing the witnesses' memory." This is within the ambit of section 166 of the Evidence Act (Cap 6 - RE 2002) which provides: "In order to corroborate the testimony of a witness, any former statement, written or oral made by that witness relating to the same facts made either at or at about the same time when the fact took place or before any authority legally competent to investigate the fact, may be proved." In the present case PWl, PW4 and PWS claimed to have identified the 2nd Appellant. PWl said that he knew the Appellant by face, and that he was able to see him by the aid of a pressure lamp as it was 8.00 p.m. PW4 also said there was a pressure lamp, but could only identify Adam (the ih accused), and that the pressure lamp was so bright that it shone even outside the shop. However in cross examination he admitted that he was confused and could not even identify the neighbours who gathered at the scene. PWS, on 12 the other hand, also told the court that he was able to identify the Appellant because he was the one who beat him and there was the light of the pressure lamp. . However, he also said that he gave two statements at the police, and on the first day he was confused. Besides, during the ransack he hid himself under the cushions of I coaches. In cross examination he also admitted that he saw him by face and that was the first time he was seeing him. From the account of PWl and Pvys, it is clear that both of them had seen the appellant for the first time. Both were confused by the incident. Both never gave any description of the appellant; such as, his complexity, the type of clothes he put on, etc. There is no evidence as to which part of the shop, the pressure lamp was, and the intensity of its light. No identification parade y.jas conducted, which would have corroborated t~e dock identification of the appellant as the witnesses did in this case. As this Court said in MUSA ELIAS AND 2 OTHERS vR Criminal Appeal No. 172 of 1993 (Unreported). 13 I "It is a well established Irule that dock identification of an accusep person by a I witness who is a stranger to; the accused. has I value only where there ; has been an identification parade at which the witness successfully identified the a~cused before the witness was called to give evidence at the trial." I I Since PWl and PWS stated that they kqew the second appellant only by appearance, not by name, the proper thing for the police to do was to conduct an identification parade where the witnesses would identify the culprit. Since the witness~s gave no description of the ' I second appellant to the person(s) to vyhom they first reported, and . j since they only identified the appellant in dock during the trial, the trial was most unsatisfactory; and so Juch identification was of little I or no value (See OMARY ISSA vR Criminal Appeal No. 11 of 1989 j (Mwanza) (Unreported). Like in the case of the 1st appellant, we find I the conviction of the 2nd appellant too, unsafe. I I I I I I I I 14 As regards the third appellant the first appellate court found that the third appellant's cautioned statement was inadmissible in the circumstances, and so excluded it; but found that the visual identification against him was watertight. As correctly observed by the High Court on appeal, the evidence of identification against the third appellant was similar in content to that given against the second appellant. And as we said, in respect. of the second appellant, apart from the presence of a pressure lamp, PWl and PWS had seen the third appellant only at the "date of the event"; whereas PWS never even identified the third appellant from the dock, as he did not know him. Even PW4 could not identify him from the dock. PWl who purported to have seen the appellant did not give a description of the appellant to the police or to any person in authority and, like in the case of the second appellant; we find the dock identification, of the third appellant, unsatisfactory. His conviction too, is unsafe. 15 For all the above reasons, we hcwe come to the conclusion that this appeal has merit. The circumstantial evidence against the 1st i appellant was inconclusive, whereas: the retracted confession was uncorroborated; the evidence of vi~ual identification against the second and third appellants was most Iunsatisfactory. In the result, their convictio~s are not saie and cannot therefore be sustained. The appe~I is therefore allowed. The ! convictions are quashed and sentences set aside. The Appellants are to be released from prison forthwith ! unless they are otherwise lawfully held. Order accordingly. 16 DATED at TABORA this 30th day of-October, 2009. N.P. KIMARO JUSTICE OF APPEAL M.S. MBAROUK I JUSTICE OF APPEAL S.A. MASSA"tl JUSTICE OF APiPEAL I certify that this is a true copy of the original. I