20110628 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFE, l.A.. KIMARO, l.A, And MANDIA, l.A.) CRIMINAL APPEAL NO. ~6 OF 2010 ) 1. MBOJE MAWE } 2. CHENYENYE MAGANYALE 3. SAVI GAMAYA MWANAPILI ...............................................APPELLANTS 4. SAVI MAFIZI VERSUS THE REPUBLIC ........ ~ ................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Mjemmas, l.) dated the 2 nd day of November, 2009 in Criminal Sessions Case No. 25 of 2009 JUDGMENT OF THE COURT 24 & 29 June, 2011 MSOFFE, J.A.: The appellants MBOJE MAWE, CHENYENYE MAGANYALE, SAYI GAMAYA MWANAPILI and SAYI MAFIZI were convicted of the murder of· Lyaku Willy on information in the indictment that on divers dates· between 1st day of November 2008 and 5th day of November 2008 at Nkindwabiye village, Mwaubingi Dutwa, within the District of Bariadi in Shinyanga Region they murdered the said Lyaku Willy. Mjemmas, J. sentenced each 2 of them to suffer death by hanging. Aggrieved by the conviction and the sentence, the appellants have preferred this appeal. The prosecution case was briefly that the deceased, an albino, and the third appellant were brothers-in-law. The second appellant was a village chairman while the third appellant was a "kitongoji" chairman. The deceased had a chronic and an unhealing wound on his left leg and he was also mentally retarded. He used to stay at the house of the third appellant. On the alleged date of incident the third appellant told the deceased that he would take him to Somanga Hospital for treatment of his left wound. As the hospital was a bit far from the village, he told the deceased that they would have to start the journey at night. He also told him that since they were to travel at night they would have to be accompanied by other people. The deceased agreed and on the appointed night the appellants and the deceased slept together in the third appellant's house. At around 01.00 hours the appellants awakened the deceased and started their journey to the said hospital. On arrival at Kidamnida river the third appellant told the deceased that he should first wash the wound so that he could be treated easily at the hospital. The deceased obliged or heeded to the advice and bent into the river with the view of washing the wound. 3 Thereupon, the second appellant drowned him into the river until he became unconscious. Thereafter, the first and second appellants cut his head with the use of a dagger which belonged to the second appellant while the third and fourth appellants amputated his legs by using a machete which belonged to the first appellant. After doing so, they put the deceased's body in a sulphate bag and dumped it into a well in which cattle are normally taken to drink water. The legs and head were put in plastic bags and taken to the first appellant's house where they were hidden within the compound. The machete was hidden in the first appellant's house while the dagger was taken and hidden in the second appellant's house. On 29/11/2008 rumours spread around the village that there was an unidentified dead body within the well at Kidamnida river. On 4/12/2008 information was channeled to the village authorities by a good samaritan. An alarm was raised and people gathered at the well. On 5/12/2008 the body wrapped in a sulphate bag was removed from the well. It was found with both legs amputated from the knee and the head was completely severed from the main body. The body was identified to be that of Lyaku Willy. The matter was reported to the police who in turn went to the scene with Dr. Anania Maduhu. The doctor examined the body and in the post mortem examination report, which was produced and 4 admitted in evidence as exhibit Pl without objection, the doctor opined that the death was due to ''severe haemorrhage due to multiple severe cut wounds'~ On the same date, i.e. on 5/12/2008, the third appellant was arrested and on the following day the other appellants were arrested. Upon interrogation the first appellant admitted that he and the other appellants killed the deceased. He also revealed that t~e deceased's legs, head and his machete were hidden at his homestead. He volunteered to take policemen to his house with a view to showing where they had buried the head and the two legs. On arrival at his house the first appellant showed and eventually dug out the said body parts. He also went into his house and came out with the machete used in cutting the deceased to death. The first appellant also disclosed that the body parts were to be sold to a certain witchdoctor at Lamadi within Magu District in Mwanza Region. It is in evidence that the first appellant eventually made cautioned and extra-judicial statements implicating himself and the other appellants. It is also in evidence that the body parts, machete and the dagger were sent to the Chief Governemnt Chemist for DNA profiling. In addition to that, samples from the appellants as well as the deceased's relatives were sent to the Chief Government Chemist for the same purpose. The results revealed that the machete and the dagger found at the first and second 5 appellants, respectively, had DNA profiles of the deceased. Also DNA profiles of the appellants were sent to the Chief Government Chemist who found that the dagger found in the second appellant's house had DNA profiles of the second appellant. The results also revealed that the machete found at the first appellant's house had DNA profiles of the first, third and fourth appellants. Briefly, in defence the appellants denied killing the deceased. The first appellant retracted the cautioned and extra-judicial statements. Further to the above general denials the second appellant raised the defence of alibi. Indeed, he went on to call the first appellant ''a mad man"for implicating him. In convicting the appellants the trial judge relied on the oral evidence of the prosecution witnesses, the cautioned and extra-judicial statements, the doctrine of common intention and the DNA profiles. Before us the appellants were advocated for by Mr. Serapion Kahangwa, Mr. Method R. G. Kabuguzi, Mr. Feran Kweka and Mr. John Ng'wigulila, learned counsel for the 1st, 2nd , 3rd and 4th appellants, respectively. On the other hand the respondent Republic had the services 6 of Mr. Edwin Kakolaki assisted by Ms. Veritas Mlay and Mr. Prudens. Rweyongeza, learned Senior State Attorneys. We propose to begin with a ground of appeal which is common to the second, third and fourth appellants. The ground relates to the DNA profiles. We note that although the DNA profiles cover the first appellant as well, Mr. Kahangwa did not canvass a ground on the point. The complaint is that the judge erred in holding that the DNA reports were sufficient corroborative evidence. In our approach to this ground we will bear in mind this Court's decision in Hilda Abel v Republic (1993) TLR 246 that courts are not bound to accept medical expert's evidence if there are good reasons for not accepting the evidence. The expert evidence in this case was given by PW11 Gloria Tom Machuve. In her evidence, after receiving the samples her office started to conduct analysis or investigation which consisted of five steps: - First, sample preparation (Maandalizi ya Kielelezo) Second, DNA extraction from the samples (Utoaji wa DNA katika kielelezo) Third, amplification of the DNA (Ukuzwaji wa vinasaba (DNA} katika nakala nyingi) 7 Fourth, DNA capillary electrophoesis process into the genetic analyzer (Kunyambulishwa vinasaba katika mpangilio wa chembechembe asili za urithi) Fifth, interpreting the results and report write up (Kutafsiri matokeo na kuandika ripoti). Thereafter, her office conducted analysis and comparisons on all samples and prepared reports (LAB No. 283/2009 and LAB No. 240/2009) which were eventually produced and admitted in evidence as exhibit P9. Then PWll went on to say, inter alia, as follows: - From the report the probability or chances that the DNA of Mboje Mawe, Sayi Gamaya, Sayi Mafizi not to be found in the exhibit "C" - ''Panga "is one out of a billion, meaning that the proprietor of the DNA found in the exhibit "C" is none other than that of Mboje Mawe, Sayi Gamaya and Sayi Mafiz,: In her conclusion on the reports PWll said as follows when she was cross- examined by Mr. Kahangwa: - I guarantee the report by 99.9999% to be correct and it may be tested in another country and produce the same results. This brings us to a very vital question. What is DNA and how are the * results taken? PWll explained, in short, that DNA is a short form for 8 ''Deoxyribonucleic-aid which in Kiswahili means viini tete or vinasaba. // As to how DNA is taken she explained as illustrated above, after which the aforementioned reports were made. With respect, her definition and the process of taking DNA were not as thorough as is reflected in the English decision of Alan James Doheny Gany Adams, R v. (1996) EWCA Crim 728 (31 st July 1996) which was also referred to by this Court in the recent decision of Joseph Lugata v Republic, Criminal Appeal No. 317 of 2009 ( unreported) that: - Deoxyribonudeic acid, or DNA/ consists of long ribbon-like molecules/ the chromosomes/ 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes - 23 provided from the mother and 23 from the father at conception form the genetic blueprint of the body. Different sections of DNA have different identifiable and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain sufficient sections of DNA to enable a comparison to be made with the same sections extracted from a sample of blood provided by the suspect. Then the Court, in the English case, went on to quote Lord Taylor CJ. in the case of Deen (transcript: 21 st December 1999) that: - 9 The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the suspect In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X- ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. - When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not. Then Philips, L.J. went further to say:- The characteristics of an individual band of DNA will not be unique. The fact that the identical characteristic of a single band are to be found in the crime stain and the sample from the suspect does not prove that both have originated from the same source. Other persons will also have that identical band as part 10 of their genetic make-up. Empirical research enables the analyst to predict the statistical likelihood of an individual DNA band being found in ·the genetic make-up ofpersons ofparticular racial groups "the random occurrence ratio'~ Referring us to the evidence of PWl 1, this Court's decision in Lugata, and the above English decision, Mr. Kakolaki urged us to opine and hold that the DNA's were conclusive proof that the appellants were involved in the crime in issue. To this end, he submitted as follows: - So, in our case if the ocurrence ratio is one out of a billion and we Tanzanians are estimated at 40 or 50 million then the possibility that the owner of the DNA profile not to be the accused person referred to is not there. That means the accused person is the only perpetrator in this particular crime. With respect, we can see and appreciate the force of argument in Mr. Kakolaki's submission. But we are unable to go along with him for two reasons: - One, the above submission is in such a nature that we would have expected it to come from PW11 - the expert on DNA - after making the necessary calculations on ocurrence ratio. 11 Two, as demonstrated above, PW11 explained how her office dealt with the samples. But from her evidence we do not get the impression that the profiling was done as thoroughly as is explained in the above English decision. Indeed, as pointed out above, we do not read anything in her evidence that she gave the random occurrence ratio! For the above reasons, much as we have respect for PW11 and ·her evidence on DNA we are unable to go along with her, the trial court, and Mr. Kakolaki that the DNA profiles were conclusive evidence against the appellants. It is for this reason that in the circumstances of this case it is safe to adopt this Court's approach in Lugata that it is safe to have some other independent evidence apart from DNA. In saying so, we should not be understood to mean that we are ruling out DNA evidence in our jurisprudence. All that we are saying and emphasizing here is that DNA f profiling should be done in a manner that is as thorough as is humanly possible. The process should be conducted in a way that gives no room for doubt or loophole. And the evidence on record should reflect or show that this was done. Subject of course to limitations obtaining in our jurisdiction, we would endorse the suggestions made by Mr. Alistair Webster QC, on 12 behalf of Doheny (supra)✓ that the procedure which would be followed in relation to DNA evidence should, as far as is possible, be: - 1. The scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio. 2. Whenever such evidence is to be adduced, the crown should serve upon the Defence details as to how the calculations have been carried out which are sufficient for the defence to scrutinize the basis of the calculations. 3. The Forensic Science Service ('FSS'? should make available to a defence expert, if requested, the databases upon which the calculations have been made. In dealing with the other grounds in the appeal learned counsel argued generally. We too propose to dispose of the rest of the appeal generally. It is on record that the first appellant made cautioned and extra- judicial statements. The cautioned statement contains details of how the whole idea of looking for organs of an albino came about and how it was executed. Part of the cautioned statement reads: - 13 Tulikwenda hadi umbali wa mita 100 tukakuta kisima. Sayi Gamaya akamwambia huyo zeruzeru aoshe kidonda chake iii iwe rahisi kutibiwa huko hospitali. Yule zeruzeru aliamua kuosha kidonda na ndipo Chenyenye Maganyale akaniambia nimuinamishe kwenye maji iii ate kwanza. Nilipokataa ndipo Chenyenye Maganyale akamshika zeruzeru huyo na kumwinamisha katika maji akafa. Baada ya huyo zeruzeru kufa tulimtoa nje ya maji na ndipo Chenyenye akakata shingo ndipo akaniambia mimi nimalizie kwa panga. Ndipo wengine Masahi Mafwize akawa anakata mguu mwingine. Baada ya kumaliza tulimweka katika mifuko na Ngumbu na Salu Mshamamba walimtupa katika kisima. The statement also reads: - Pia nasema wote waliokamatwa na ambao bado hawajakamatwa tumeshiriki katika mauaji haya ya albino, aidha kwa kushiriki kuuwa au kutoa mawazo na kushawishi kufanyika mauaji ya albino. Further to the cautioned statement, the first appellant also made an extra- judicial statement. It is significant to observe here that, according to PW7 E 9477 D/C Tegemea at page 135 of the record who was not contradicted by the defence, the first appellant voluntered himself to make the extra- judicial statement before a justice of peace. In the statement he said: - 14 Tulimpeleka mtoni hapo kuna kisima, tulimshika miguuni tukamtumbukiza kwenye hicho kisima hadi akafa ndipo tukamtoa, tukamkata kichwa na miguu. Mwili uliobaki tukamweka kwenye mfuko wa sandarusi tukamtumbukiza kwenye majl tukarudi nyumbani tukiwa na kichwa na miguu. Hivyo ni kweli nilimuua huyo albino tukishirikiana na hao wenzetu. The appellant retracted the above confessions. The law, as correctly stated by the trial judge, is that where an accused person retracts his confession the court can convict on the uncorroborated confession provided that it warns itself of the danger of acting on such confession and if it is fully satisfied that the confession cannot but be true - Hatibu Ghandhi and Others v Republic (1996) TLR 12. However, as a matter of practice a retracted confession requires corroboration. For instance, in Ali Salehe Msutu v Republic (1980) TLR 1 at page 4 this Court stated: - It has long been an established rule of practice in East Africa, including this country, that a repudiated confession, though as a matter of law may support a conviction, generally requires as a matter of prudence corroboration as is normally the case where a confession is retracted 15 In the confessions the first appellant implicated himself and the other appellants. In terms of Section 33(2) of the Evidence Act (CAP 6 R.E. 2002): - Notwithstanding subsection (JJ a conviction of an accused person shall not be based solely on a confession by a co- accused. The issue is whether there is evidence to corroborate the first appellant's confession implicating himself and the other appellants. In our answer to this issue we will do so generally as shall be demonstrated hereunder. The first corroborative evidence is to be found in the conduct of the first appellant. The conduct is reflected from the evidence of PWl Mayenga Matongo, the village executive officer for Nkindwabiye village. According to PWl, after information was relayed to the village authorities that a dead body had been seen at Kidamnida river and an alarm raised for villagers to assemble and look for the dead body, it was discovered that the first appellant and some of his confederates were missing. It was learnt that he had escaped to the nearby Halawa village. Surely, this conduct was not consistent with that of an innocent person. At such 16 critical time in the village it was expected that the first appellant, if innocent, would have stayed back in the village and assist in the recovery process of the body at Kidamnida river. It is also known from the evidence of PWl that when the first appellant was traced at Halawa and asked as to why he had escaped from Nkindwabiye he made an oral confession to the effect that: - ... he was afraid to be in his village Nkindwabiye because he had killed a person. He said that he had killed Lyaku Willy. He also said that he committed the unlawful act with other people. He mentioned those people as Sayi Mafizl Chenyenye Maganyala/ Sayi Gamaya/ Ngumbu Nzige and Masahi Magumba... While at Halawa Mboje Mawe also said that they had hidden at his home the head and legs of the person they had killed. Thereafter, it is on record that on arrival at the first appellant's home, according to PWl, this appellant: - ... led us to the place where he had hidden the deceased's head and legs. He showed us to two places. The head was buried in the west side of his house and the legs were buried in the south of the house. When the head and the legs were unearthed I saw 17 them. They were of an albino. Mboje Mawe also showed us a machete which was in his house. This oral confession is significant in the sense that it was made before the first appellant made the cautioned statement, and also before he volunteered to make the extra-judicial statement. It is also significant in that at that early opportunity this appellant named the other appellants. It is also important to point out that in giving that confession this appellant was not operating under a state of fear or threat. Finally, the significance of this confession lies in the fact that he stated where the body parts were buried and eventually on arrival at his house he dug them out himself. In essence therefore, this was ''a confession leading to discovery." In fact, it will be recalled from the evidence of PW7 at page 132 of the record that the first appellant requested all involved to be arrested before he could show the body parts. We are aware that in his defence this appellant said that the body parts were unearthed by the police. With respect, this assertion is not borne out by the evidence on record. PW1 and PW2 Yusufu Ramadhani, who were independent witnesses so to say, were positive that it was the first appellant himself who showed where the body parts were buried and eventually dug them out. As also held by this Court in Hadija Salum and Another v Republic, Criminal Appeal Nos. 11 and 18 32 of 1996 (unreported), the "confession leading to discovery" in this case is sufficient corroborative evidence of the oral confession before PW1 and PW7. Indeed, if we may add here, the oral confession in the context in which it was also made before PW7 leading to the discovery of the body parts is relevant and fell within the ambit of the provisions of Section 31 of the Evidence Act (CAP 6 R.E. 2002) which reads: - 31. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer✓ so much of such information, whether it amounts to a confession or not, as relates distinctively to the fact thereby discovered, is relevant. The case of Kuruma Kaniu v R 21 EACA 242 at page 244, though dealing with the search and arrest of an accused person, is also relevant in the context of the above point. Another corroborative evidence is to be found in the extra-judicial statement ( exhibit Pl0) recorded before PW13 Liberata Mhagama. It is significant that before making the statement PW13 inspected the first appellant and observed "Hana Jeraha lolote'; to suggest that he was not tortured before being taken to the justice of peace. The statement shows 19 how the plan to kill the deceased was hatched and executed. The statement is so detailed that what is disclosed therein could only be true. In this sense we are fortified by the remark made by this Court in Steven Jason and two Others v Republic, Criminal Appeal No. 79 of 1999 (unreported) that: - The detailed account of the initial stages of the plan to kill the deceased, the role played by each of the appellants in the plan and the sequence of events leading to the death of the deceased, could not in our view, be given by a person who was not either a party to the plan or had knowledge of it Otherwise, it is inconceivable that all this information was thrust upon the first appellant by the Justice of Peace or someone else he claims. We are satisfied that the extra-judicial statement corroborated the oral confession. In the case of Pascal Kitigwa v Republic (1994) TLR 65 this Court held, inter alia, that corroborative evidence may be circumstantial and may as well come from the words or conduct of the accused, and may.as well also corroborate the evidence of a co-accused. While this authority is relevant for purposes of the conduct of the first appellant discussed above, 20 it is also relevant in respect of the second appellant. This ·is borne out by the evidence of PWl thus: - Before the arrival of the OCD, we went to the house of Chenyenye Maganyale where he produced the knife which was mentioned by Mboje Mawe. As in Kitigwa (supra) we are satisfied that the second appellant's conduct in the above respect corroborated the evidence of the first appellant on the knife that was used in killing the deceased at Kidamnida river. While discussing the second appellant it is also significant to mention here that, as was the case with the first appellant, while at Halawa PWl and PW7 heard the first appellant mentioning this appellant. The evidence of PWl and PW7 in this respect corroborated the evidence of the first appellant. Added to this, is the first appellant's extra-judicial statement where at page 745 of the record before us the second appellant is mentioned as having been a particeps criminis in killing the deceased. The trial judge was satisfied that PWl and PW7 were credible. We have no reason(s) for differing with him in this aspect. On the aspect of conduct, we may as well say something here about the third appellant. According to PWl at page 32 of the record he directed 21 this appellant, who happened to be a ''kitongoji" Chairman, to summon villagers for purposes of looking out for the dead body. Instead of complying with the directive this appellant allegedly told the ward councillor that that was government business which had nothing to do with him. As held in Kitigwa the appellant's words and conduct in this regard corroborated the first appellant's oral confession that he was a particeps criminis. We say so because, under normal circumstances, given the fact that at the time in issue the village authority was all out to ensure that the dead body was recovered and the culprits brought to justice it was inconceivable that this appellant, a leader for that matter, would say and act in the above manner. At this juncture, we may also add something in respect of the case against the third and fourth appellants. As was the case with the second appellant, it is on record that the first appellant mentioned them at Halawa. He mentioned them to PWl, PW2 and PW7. It is significant to observe here that he mentioned them at that early opportunity (our emphasis) before he recorded the cautioned and extra-judicial statements. He did so at a time when this appellant was not under fear or threat. On this score, like the trial judge we are satisfied that PWl, PW2 and PW7 were credible 22 ,. and their evidence corroborated the first appellant's oral confession against the other appellants. Further to this, it is also significant to mention here that, as shall be recalled, the first appellant mentioned them before the justice of piece. Before the justice of peace was a good opportunity for the first appellant to say the truth because he was not under fear or threat. Once again, we have no reasons for disagreeing with the judge in his reasoning on the first appellant's extra-judicial statement in this respect. As stated above, upon looking at the extra-judicial statement we are satisfied that it is detailed and the contents therein could have only been said by someone who was in control and knowlegeable of the tragic events in this case. There is yet another aspect of the case which is worthwhile mentioning here. It is in evidence that the first appellant denied knowledge of the body parts unearthed in his house allegedly because he had already shifted from that house. With respect, this was a blatant lie because the evidence of PWl 4 Malugu Mkatakona in this respect did not bear him out. PWl 4 was categorical that the first appellant rented the house up to 7/12/2008. In other words, up to the time of incident, the first appellant was still a tenant of PWl 4. In Hamidu Mussa Thimotheo I 23 and Majidi Mussa Thimotheo v Republic (1993) TLR 125 at page 130 this Court observed: - ''It is a truism that lies by the accused can never form the basis for a conviction but certainly they can be part of a chain'~ In similar vein, this Court in Paschal Mwita and Others v Republic (1993) TLR 295 at page 300 citing with approval a decision of the defunct Eastern African Court of Appeal stated: - Although lies and evasions on the part of an accused do not in themselves prove the facts alleged against him, they may, if on material issues, be taken into account along with other matters and the evidence as a whole when considering his guilt This Court expressed the same opinion in Thimotheo (supra) at page 129 thus: - Secondly, they told a number of lies in a situation where had they been innocent, telling the naked truth was the most natural and easist thing to do. In this case, there was no reason for the first appellant to tell the above lie. Having already confessed orally to PWl and PW7 there was no need for him to tell that blatant lie that he had by then shifted from the house. 24 The final corroborative evidence is to be found in the post mortem examination report (exhibit Pl). On the external appearance the doctor observed: - Dead body lying dorsally covered with plastic bag. Slaughtered heacl and the head missing from the dead body and both legs (two) amputated at the knee joint, and missing at the dead body. As for the skull and its contents he observed: - Head missing from the dead body (slaughtered). On other skeletal structures he observed: - Missing of both legs below the knee joint. As for the mouth, pharynx, and oesophagus he observed: - Mouth pharynx missing, oesophagus and trachea cut In our respectful opinion, the above observations are consistent with the first appellant's evidence that the above mentioned parts were severed or cut from the rest of the body after drowning and killing the deceased at Kidamnida river on the fateful day. 25 II Mr. Kahangwa pointed out discrepancies here and there in the evidence, especially in relation to the first appellant. With respect, it is our view that they were minor and did not go to the central issue in the case. In the totality of the evidence on record, the trial judge was justified in invoking the doctrine of common intention (Section 23 of the Penal Code) in convicting the appellants. Except for the position we have taken on the ground relating to DNA, the rest of the appeal has no merit. We hereby dismiss it in its entirety. DATED at TABORA this 28 th day_of June, 2011. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. (E. Y. Mkwizu) DEPUTY REGISTRAR COURT OF APPEAL