20100225 TZCA Arusha2

IN THE ,COURT OF APPEAL OF 'TA'NZA'NIA ATARUSHA {CORAM: 'NSEKELA, J.A., RUTAKANGWA, J.A., And 'MANDIA, J.A.) I CRIMINAL APPEAL :NO.1235 OF :2007 ~ WILBARD ,KIMANGANO ... ..................... lI..............·........... ,APPELLANT VERSUS i, 'THE ;REPU.BL'IC ••• -..•••••••.•••• i••••··················~-·-••···············•··• I ;'RESP.O.ND'ENT I i {Appeal from the Conviction of the High :Court ·ofTanzania ,at'Moshi) i I ·(Munuo, .J.) · I dated the 29th day of October, :19.99 in ! Criminal Appeal No. S1 of ·1999 --------------~- JUDGMENT·OFTHE COURT . 19th & '26th February :2010 RUTAKANGWA, J.A. . This is a second appeal. The aplpellant was convicted by the trial District Court of Hai .of the offence of Rape contrary to section I i 131 (1) of the Penal Code cap 16, Vol. -•~ as amended by section 6 of I . I Act No. 4 of 1998. He was alleged to ~ave had ca_rnal knowledge of one Rosada d/o Edward, a girl aged 13 years old on 10th July, 1998. 1 3 children of tender age and PW1 Rosada's PF3 (exhibit Pl), which evidence was received by the trial court without complyin_g with the - mandatory provisions of the law. In elaboration Miss Banzi said that the PF3 (exhibit Pl) was· received in evidence without its contents being read out to the appellant. Secondly, she argued, after exhibit Pl had been admitted as evidence, the appellant was not informed of his statutory right under section 240 (3) of the Act to have the person who made it summoned for examination and/or cross - examination. On account of these two irregularities, she pressed us to expunge the PF3 from the record. As authority, she referred us to the decision of this Court in JAPHARI JUMA v REPUBLIC, Criminal Appeal No. 104 of 2006 ( unreported). Regarding· the evidence of PW1 Rosada and PW3 Omega, Miss Banzi sided with the appellant. She pointed out that as both witnesses were below 14 years of age they were children of tender age. Their evidence, she stressed, could not be received unless until ) 5 We accept Miss Banzi~s :assertion that the prosecution case against the appellant depended· entir~ly on the evidence ·of PWl i Rosada and PW2 Omega. and the P~3 (exhibit •Pl}. The other ' . i witness, PW3 WP 3844 D/CPI. Buholo, only recorded the· statement I I ' of the appellant in which he had denied iraping PWl Rosada. ' i Ii i The issue 'of the PF3 need not detain I. us unnecessarily; . The law j: on it ,is well. settled. · As the Court observed l in the case of A'LFEO i 'YJ\LENTINO v iREPUBLIC, Crimin~II Appe_al No. 92 of 2006 1, . I. (unreported), section 240 .fl) of the Act! sanctions receipt in evidence :i I in a subordinate court of statements or :reports by medical witnesses. 'I !j But this is subject to the mandatory provisions of sub-section (3). • I The .said .sub-section reads thus-:- " I " When a report referred t9 in this section is received evidence the court may, if it thinks · ·, fit, and shall, if so '.requested .by the . .accused or his ,advocate, summon and examine or make available , for cross - 7 . That has been the stance of our courts to date and we see no reason to depart from it. This is because this established principle of law is fully consistent with the universally recognized accused person's right to a fair trial. In view of the above, we uphold and allow the appellant's fourth ground of appeal. We shall discount exhibit Pl in its totality. This then leaves us with only the testimony of PWl Rosada and PW2 Omega. The attack on the quality of the two witnesses' evidence was based on section 127 (2) of the Evidence Act. This provision reads thus:- " Where in any Criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be 9 Court of Appeal for .Eastern African quashed the conviction for ·murder. -At page 95, the court is reportep to have held: jl I I j, " ..... :Since the· evidence of ~he two boys was of so. vital ·a nature we cannot say that the. ' learned trial judge's failure to comply With the requirements of S. 19 (1) was one which can I ., have occasioned no misca~riage of justice, I and upon this ground alon~: the appeal must be allowed." i I We· take the· phrase "miscarriage bf justice" to. be_ synonymous with "failure of justice"1 whose usual criterion is "being whether the appellant has a lost a reasonable chance of acquittal",: See, ', !, . ·1 !ICENVARITHI s/o MWA NGI ·V. REG. "(1956) 23 .EACA 422, at page 1 • I ! 427. If, for example, the trial court fullly complies with the· statutory provisions and forms an opinion that the child of tender age does not :! either .possess sufficient intelligence to justify reception of its !i,, ,; evidence or does not understand the duty of speaking the truth, his 11 ' .It is our considered ,view that the two requirements .are .conditions precedent to receipt of e.vidence from .a child of tender years .whose ,evidence has not been received on oath or .affirmation." [Emphasis is ours]: The trial court does, of course, reach an informed opinion on these legal requirements by conducting what is now known as a voire dire examination. However, as was observed in KIBANGENY'S case (supra)_, " such an investigation need not be a lengthy one, but it must be made, and when made the trial judge ought to record it." The rationale for recording it was thus stated by this Court in the case of SEKO SA MWEL v REPUBLlC, Criminal 1 Appeal No. 7 of 2003: " ... Admittedly, it is a healthy practice to be recommended for the lower courts as it would :i 13 j,i i In the case before us, the trial judge II . I , said she -had found that the :witness knew the duty . of speaking . the truth and then I I I.• I proceeded to have her swo~n·. But she had . 1: not cfound that the 'Witness understood . ' :the ·:nature :of an oath, .:which is a -'Condition p·recedent :for taking ·her . ~ . e.vidence on <"oath. .In thb circumstances .,, "i . . :1 :there-,was no basis for taking Coletha's ;e.vidence. .There was also no sufficient I• Justification -for .e.ven/: treating .her . . I I· evidence as .unsworn because one of the 1: !I prerequisites had not been met, that is to say . there was no specific finding that she was ' I . I' I possessed of sufficient int~lligence to justify . . 1 the reception of her evidenqe ... " [Emphasis is . 1: j ours]. 15 ; · ,j ..... sentence. The appellant should be released from prison forthwith .unless he is held for another lawful cause. DATED at ARUSHA this 25th day of February, 2010. H.R. NSEKELA JUSTICE ·OF APPEAL E.M.K RUTAKANGWA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original M..A. MALEWO :DEPUTY REGISTRAR COURT OF APPEAL