michael daffi vs republic 2009 tzhc 68 14 january 2009

IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 100 OF 2007 (Originating from Babati District Court Criminal Case No. 57 o f1999) MICHAEL DAFFI ..........................................APPELLANT VERSUS THE REPUBLIC.............................................RESPONDENT (Appeal from the decision of Babati District Court (H.H.M. TUWA, DM) Dated in 31st day of August, 1999 In Criminal Case No. 57 of 1999 JUDGMENT N.P.Z, CHOCHA, J, The respondent (Republic) did not support conviction of the appellant Michael Daffi. The later had been convicted by the Babati District Magistrate against the offence of rape c/ss 130 & 131 of the Penal Code as amended by the Sexual Offence Special Provisions Act No. 4 of 1998. The story is briefly such that the appellant was caught on the 21/02/1999 hidding himself at the bed's hollow in the house of one Taabi Darabe where he was staying. Fausta Taabi aged about 9 years and insane was found by PW 1 crying. After inquiry as to what made her cry, she simply pointed at the bed's hollow, whereat PW 1 spotted the appellant hiding. PW 1 called neighbours who together with him, they apprehended the appellant and submitted him before the village authorities to have the law take its course. Upon examination of Fausta, it was established that she had her private parts severely damaged. She was bleeding profusely. She was referred to hospital for further attention as PW 3 Remmy Ndoosi a Medical Officer for Bashnet informed the court. The trial court, in a one page type written judgment was satisfied that the appellant had been proved guilt. In view of the fact that the victim was below 10 years old, it accordingly imposed a statutory sentence of imprisonment for life provided for under the Sexual Offence Special Provisions Act. In addition thereto, the court further imposed a corporal punishment of 10 strokes. The appellant was granted leave to process an appeal out of time which he lodged in 2007, almost eight years after his conviction and sentence. After organizing his mind, the appellant realized that it had been stated by PW 1 that several people including himself had participated during his (appellant) arrest, but only PW 1 who is the victim's brother had turned out to testify. The appellant raised as a ground, that PW l's evidence fell short of corroboration particularly considering that he was the victim's blood brother. He opined that some independent witness ought to testify. The respondent supported the appeal by outlining further deficiencies in the entire process. According to the respondent (Nchalla - State attorney) the deficiencies were fundamental such that it was not safe to conclude that the appellant had at all raped Fausta. The respondent sited the trial court's judgment. She said it was so short such that it had not fulfilled the conditions set out under section 312 of the Criminal Procedure Act which outlines the contents of judgment. In her opinion, the manuscript did not qualify the status of a judgment. The respondent further discredited the evidence of PW 2 who is a Village Executive Officer for his failure to reduce the appellant's statement into a written caution statement. She concluded that although it was proved that the victim had been raped, it was not safe to find that the appellant was the only assailant. If issues raised by the respondent are left unclarified, they are likely to create more confusion. The respondent is disturbed with the unusually length of the judgment and she finds that it is not compliant of the requirements of Section 312 of the criminal Procedure act. The respondent did not cite the exact subsection. I think however that she had in mind Section 312 (1), for; this is the one touching generally the contents of the judgment. For easy of reference the provision is hereby let to speak for itself:- "312 - (1) Every judgm ent under the provisions o f section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superitendence o f the presiding judge or magistrate in the language o f the court and shall contain the point or points for determination, the decision thereon and the reasons for the d ecisio n an d shall be dated and signed by the presiding officer as o f the date on which it is pronounced in court," The respondent (Nchalla - State attorney) was not satisfied with the extent of the trial court's analysis of evidence. Unfortunately the provisions (Section 312(1) of the Criminal Procedure Act) does not state the extent which the evidence shall be analysed. What is directed thereunder is that there should a point or points for determination which must be on record. Much as I agree that it is a good idea to disclose reasons of the judgment but I find nowhere in the law where a judgment is rendered a nullity by reason of failure to disclose the reasons. So much that the need to assign and disclose reasons remains a matter of practice and not law. Except for the trial magistrate's decision of keeping reasons for himself, the rest of the requirements of section 312(1) were complied with in his judgment, though some were very brief. I decline to share the respondent's view that this should be one of the aspects to discredit or disqualify the judgment. There has been raised a question of requirement of corroboration. Understandably, section 27 o f the Sexual Offences Special Provisions Act, has amended bv section 127 o f the Evidence Act to the effect that in sexual offences the court may base conviction on a sole reliable evidence of a child of tender years, his minority age notwithstanding. Fausta who was the victim in this case would be protected by this provision. However on account of insanity as ruled by the court, she could not testify. Whereas an adult may lodge a complaint on behalf of a child of tender years who is for any reasonable cause prevented from assuming the role, it is not open for him to enjoy every priviledge such as the waiver of the requirement of corroboration of evidence which a child/complainant enjoys under section 127 of the Tanzania Evidence Act as amended by Sec. 27 of the Sexual Offence Special Provisions Act No. 4 of 1998. Truly, PW l's evidence required corroboration on how the appellant was found. As rightly observed by the respondent (State Attorney) and the appellant himself, there were a number of people who assisted PW 1 to bring the appellant to justice. For reasons not clarified, these people were not called to testify. However, let us not loose site of PW 2's evidence on Patrice Saqwary. This man introduced himself before the trial court as the Village Executive Officer. He told the court that he received the appellant on the fateful day. He was informed that the appellant had raped Fausta. The said Fausta was right there. The witness saw her bleeding profusely. The witness told the court that the appellant admitted to be Fausta's assailant and that he pleaded leniency. In appeal, the appellant said that this piece of evidence was hearsay. The respondent invites this court to discredit the evidence because the Village Executive Officer did not reduce the statement in writing as a caution statement? With due respect, I think the learned State Attorney is demanding too much from the Village Executive Officer. In my view, the Village Executive Officer was under no duty to record the appellant's statement. That was the police's duty to which the Village Executive Officer submitted the appellant. There is no doubt the Village Executive Officer too, made his statement at police out of which the police accepted him as a credible witness. If the Village Executive Officer disclosed at police that the appellant had confessed before him to have raped Fausta, it was the duty of the police to test the veracity of the Village Executive Officer's statement against the appellant. The requirement of a caution statement originating from police would then arise. After all, the Village Executive Officer is not in authority to record a legally accepted caution statement. PW 2's evidence is not hearsay as the appellant suggests. It involved a direct conversation with the appellant. He told the court what he heard from the appellant. Fausta Taabi was brought before the trial court on the 12th July, 1999. The trial court examined her. It found that "she is insane. She cannot talk properly. She is approximately 8 years or so. She is allowed to go with her m other." Under the law, particularly Section 127 (6) of the Tanzania Evidence Act; "A person o f unsound mind shall, unless he is prevented by his condition from understanding the questions put to him and giving rational answers to themf be competent to testify," It is further provided under section 127(1) of the same Act that: "A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible , as by writing or by signs, but such writing must be written, and the signs made, in open court. It is concluded under subsection (2) of the same section that "evidence so given shall be deemed to be oral evidence. " This is the procedure governing the procurement of evidence from dumb or insane witnesses. The trial court discharged Fausta because she could not "talk properly". I think the court missed the proper test. The inability to talk or speak does not presuppose insanity that's why it is provided under the law, an alternative method to procure evidence either by writing or signs. The trial court made no attempt on the alternative methodology. The trial court was not certain with the victim's exact age. It did not ascertain whether or not she could read or write. It was necessary for the trial court to explore all this information, so that ultimately, it should come up with a finding whether the victim had, by all means/methods provided by the law, been unable to give rational answers to questions put to her. By reason of the court's failure to exhaust all methods and to properly address itself on the required test, it was denied the vital evidence from the victim. Before I pen off, I wish to add that the age of the victim of the sexual related offence who appear to be a child of tender years must be ascertained. The age shall not be speculated because it is an important factor to consider during sentence. I understand the respondent supported the appeal, but the reasons she gave were a bit misleading. I thought it necessary to clarify some issues raised both by the appellant and the respondent. The discharge of Fausta by the. court was premature. It was a fundamental irregularity by the court, whose remedy would be a retrial. I am considerate of the length of the term of imprisonment the appellant spent, almost ten years. He is himself almost 60 years of age. He must have reformed. An order for retrial is under the circumstances inhuman. I order the appellant's immediate release if he is not otherwise awfully held up. Sgd. N.P.Z. CHOCHA JUDGE 14/01/2009 Date: 15/01/2009 Coram: N.P.Z. Chocha, J. Respondent: Ms. Nchalla, State Attorney Appellant: Present Registry Assistant: Lucy Ivor Court: Judgment delivered. Order: Further right of appeal explained. Sgd. N.P.Z. CHOCHA JUDGE 15/01/2009 I hereby certify this to be a true copy of original. o a r " 2X V\ \ h \ * ■H . DISTRICT -1 ** / it ■/\^ v’• Jr NPZC/vm