20110531 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CORAM:- RUTAKANGWA, J.A., MJASIRI, J.A., And 'MANDIA,J.A.) CRIMINAL APPEAL NO. 202 OF 2010 MICHAEL JOHN @ MTEI _...... .-............................................. APPE·LLANT . VERSUS THE REPUBLIC .. ., .............. 11 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • :RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es-Salaam) (Mlay, J.) dated 27th day of September, 2006) in ~riminal Appeal No. 25 of 2006 JUDGMENT OF THE COURT 25 May, & 6 June, 2011 RUTAKANGWA, J.A.: This is a second appeal. The High Court sitting at Dar es Salaam dismissed the appellant's appeal against a conviction for armed robbery by the trial Resident Magistrate's Court, Kisutu and a prison sentence of thirty years. The appellant is contending that his conviction was flawed. It was based on very weak visual identification evidence and an alleged 1 t r confessional cautioned. statement ·which he never made at all, he is claiming. He is accordingly urging the Court to re-evaluate the evidence, overturn his conviction and set aside the sentence of imprisonment. This appeal has the support of the respondent Republicr:which was represented before us by Ms Sakina Sinda, learned State Attorney. The facts as found at the appellant's trial were simple and, save for the identity of the robbers, went largely undisputed. These were that the . victims of the un_disputed armed robbery PWl Kyle Mcfarlane and PW2 . . nd Jane Macfarlane, are husband and wife. As of 2 January, 2000, they were residing at Kijitonyama, Dar es Salaam. They had employed one Godwfn' · Malanda as a security guard at their residence. They also owned a vehicle, a Toyota RAV 4. On 2nd January, 2000, at about 20.00hrs, the couple was seated in the living room. Godwin Maranda entered. He informed them that there were guests outside. PW2 Jane went to the door. As she opened it, three men swiftly entered the house. One of them was carrying a machine gun. The armed "guests' ordered· their "hosts' to sit down and then demanded 2 to be given money on pain of being killed. Out of fear, PW1 Kyle gave the bandits TShs 800,000/=, US $300 and Stering Pound 200. After picking up the car's key, the bandits made away with the car. Other valuables stolen included a TV set, Deck and CD player. The appellant was arrested, on suspicions of being a robber, by four policemen on patrol, on 3 rd February, .2001 at around 23.00 hrs at Victoria area, Kijitonyama. He was pr9ceeding home on foot from a bar known ~s Executive Bar. He led the police to his home, which was searched but nothing incriminating was-recover~d therefrom. He was then sent to Oyster Bay Police Station, w.bere~he-spent the night. He remained in police custody until 11th February, 2000, when an identification parade, supervised by PW3 No. D Sgt Chacha and PW4 S. P. Kahyoza, was held. At the said parade both PW1 Kyle and PW2 Jane, picked out the appellant. On 15th February 2000, the appellants and four others were formally arraigned for the armed robbery at the Macfarlane's home. 3 . , The trial court found only the ·appellant and Malanda guilty as ~~ . charged. The trial Resident Magistrate found both PWl Kyle and PW2 Jane to have impeccably identified the appellant at the identification parade as they had seen him at the scene of the crime. She was so convinced because their evidence was bolstered by the appellant's confession to the - crime as contained in his -alleged . cautioned statement to PWS No. C2206D/Sgt. Yohana, a statement which the appellant had repudiated. The first appellate judge sustained .the appellant's conviction on the same grounds. It occurs to us that the issues whether or -not the two identifying· witnesses were unmistaken in their identification of the appellant among the robbers and whether or not the appellant made a confessional statement to PWS D/Sgt Yohana, are issues of fact. These, in our considered opinion and in line with established law, could best be resolved by the two courts below. On a second appeal like this one, we cannot interfere with concurrent findings of facts unless we are satisfied that there has been a misapprehension of the evidence, a miscarriage of justice or a violation of some principle of law or practice. 4 Both the appellant, who fended for himself before us, and Ms. Sakina Sinda, have pressed us to interfere in the interests of justice, as the courts below not only misapprehended the quality of the visual identification evidence, b_ut also violated a firmly entrenched principle of law. It was, first of all, their contention that the visual identification evidence was not watertight at all as the law requires. Secondly, they convincingly argued, the alleged confessional cautioned s~tement was improperly admitted in evidence and acted upon, in utter disregard of established law. In disposing of this appeal, we shall first deal with the issue of the alleged making and subsequent admission .in evidence of the cautioned I ' statement (exh. P2), which is the core of the complaint in the first ground of appeal. It is trite law that the best evidence in a criminal trial, is that of an accused person who confesses to have committed the crime:· It is equally settled law, however, that such a confession should not be readily inferred or taken for granted. That's why it is provided in section of 27 (2) of the Evidence Act, Cap 6 R.E, 2002, that:- 5 , , "The onus of proving that any confession made by an accused person was voluntarily made by t,im shall lie on the prosecution. " ·In a criminal trial, therefore, as far as alleged confessions are concerned, the prosecution has a duty of proving that: (i) The accused, by his conduct or words, made a statement, and (ii) That the statement or conduct amounting to a confession was made freely and voluntarily. The standard of proof, it must be pointed· otJt, is that of proof beyond reasonable doubt in both instances. In this case, PWS D/Sgt. Yohana told the trial court that he recorded the appellant's cautioned statement, in which he confessed to the armed robbery.· As he was about to tender a statement he attributed to the appellant in evidence, the appellant raised an objection. The appellant unequivocally told· the trial court. that although he recalled to have been . 6 interviewed by PWS, he never ever made any cautioned statement to him, let alone any confession. The public prosecutor responded urging the trial _court to accept the statement because, one, it had the appellant's signature, and -two, the appellant admitted to have been interviewed by PWS. The learned trial Resident Magistrate fell for the prosecutor's submission hook, line and sinker and admitted the repudiated cautioned statement in evidence as exh. P2. This she did inspite of the naked fact that the prosecutor was not a witness in the case. She was upheld on this on appeal by the first appellate judge. Both the appellant and Ms Sakina urged us to hold that the two courts below erred in law in acting on the repudiated confession. They argued that as no trial within a trial or inquiry was conducted to determine if it was made by the appellant, it was improperly admitted in evidence. It must, therefore, be discounted, they pressed. In disposing of this ground of appeal, we shall begin by stating the obvious. This is that there is no rule of law requiring that a trial within a trial or an inquiry for that matter, should be held whenever an objection is 7 • I . . . . taken to the admission . of a statement . by an accused person. This istrue in all criminal trials conducted· in the· High Court (with or without· the aid of assessors) and/or all courts subordinate to it. However, we wish to associate ourselves- fully with the holding of the then Court of Appeal for East Africa in the case of BAKRAN ·v REPUBLIC [1972] E.A. 92. In BAKRAN's case (supra), the Court held:- •~ ... but it is a rule of practice and there are numerous decisions arising from trials in the High Court which set out the necessity of holding a trial within a-trial and fully dealing with all its various aspects. The advocates before us were unable to refer us to any decision of this court dealing with the holding of a trial within a trial in a magistrates .court but they both agreed that the system of a trial .within a trial was always carried out in a magistrates court and they !> referred us to a jucjgment of the High Court of Kenya sitting on appeal from a magistrates court 8 in which .the procedure was approved. (see Lakhani v R.1 [1962] EA. 644. We agree that the procedure of holding a trial· within a trial should always be adopted in trials in a magistrate's court. In this connection we would also refer to our judgment in the case ofUganda · v Lwasa [1968] EA. 363, in which this court pointed out the desirability that a judge should ascertain, when an .accused is unrepresented, whether a . statement tendered by the prosecution is objected to on any ground which would make it inadmissible in law. In our opinion this practice should be followed in a magistrate's court. The object of holding a trial within a trial is twofold. Arst, in cases tried with a jury or with assessors to avoid prejudice beinf!. ~aused to the . 9 ,. accused person if the jury or the assessors should hear· evidence which will subsequently be ruled inadmissible. It has always been held and considered that a judge or a magistrate, by virtue of his legal training, will be able to divorce his mind from any inadmissible evidence when considering his verdict. The second advantage of holding a trial within a trial is to avoid prejudice being caused to an accused person if the court subsequently holds, in coming to its decision, that. the statement was improperly admitted.... " [Emphasis is ours.] It was in this spirit that this Court, for the first time, in the case of TWAHA ALI and 5 OTHERS V R., Criminal Appeal No. 78 of 2004 (unreported), ruled on the desirability of the trial magistrate's courts holding a trial . within a trial or an inquiry to determine either . the ·voluntariness or otherwise of an alleged confession or whether it was made 10 - C at all. In that case, we also accepted the reasoning and holding of the High Court of Kenya in the LAKHANI case (supra). Furthermore, we underscored the overriding importance, in order to safeguard the right to a fair trial, of the -trial court's duty not only to inform the accused person of this right to say something, if any, in connection with the alleged confession, but also to "record faithfully what an accused person says in response." The holding in TWAHA's case was followed by this Court in the case of PAUL MADUKA & FOUR OTHERS V R., Criminal Appeal No. 110 of 2007 (unreported). In this latter case the Court said:- "Omission to inform the accused of this right and/or · to conduct an inquiry or a trial within a trial in case there is an objection raisect results in a fundamental and incurable irregularity. .. " . . . See also, ANNES ALLEN v. D.P.P, Criminal Appeal No. i73 of 2007 and SElEMANf"ABDALLA & 2 OTHERS V REPUBLIC, Criminal Appeal No. 384 of 2008 (both unreported), among many others. 11 In the A:NNES ALLEN case (supra), the Court said:- '~ ..Jt was stated with sufficient lucidity by the Court of Appeal for Eastern Africa in the case of .MWAGI s/o NYANGE v REG. [1954] 21 EACA 37~ that a trial within a trial should be held to determine not only the voluntariness or otherwise of an alleged confessional statement but also .whether or not it ;was made at all ..,, "[Emphasis is ours]. After referring to a number of prior decisions, the Court concluded thus:- ''It goes without saying, then, that exhibit P4 was improperly admitted in · evidence, as no determination was made on whether or not it was made at all and if made whether it was made voluntarily. Since it . was irregularly ·admitted in evidence we hereby expunge it from the record." 12 u \' ' " . In the case under scrutiny, there is no dispute that exhibit P2 was unequivocally repudiated by the appellant. The learned trial Resident Magistrate ignored the repudiation and admitted it iri evidence without conducting a trial within a trial to determine whether it was made by the appellant at all. In view of the cited authorities, we have found ourselves in full agreement with the contentions of the appellant and Ms Sakina, that it was improperly admitted in evidence. We accordingly discount it in its totality. After expunging _ exh. P2, we are left with the visual identification evidence of PWl Kyle and PW2 Jane. The law on· the value of such evidence in criminal trials, is well settled. This evidence is of the weakest character and most unreliable. It should·be acted upon cautiously when the court is satisfied that the evidence is watertight and that all possibilities of mistaken identity are eliminated. In identification cases, witnesses must always clearly state in their ev_idence conditions favouring a · correct identification or recognition of the accused: See, for example, WAZIRI AMANI v R., [1980] T.L.R. 250, RAYMOND FRANCIS v R. [1991] T.L.R. 100, ISSA MGARA @ SHUKA v R, Criminal Appeal No. 37 13 I of.2005, -and WALTER ;ooMINI'C & ,ANOTHER v R., Criminal Appeal No. 35 of 2005 (all unreported). The undisputed evidence is to the -effect that the armed robbery was committed at night. The bandits, who were not less than three, were all - strangers to the witnesses.- PWl Kyle's evidence _is silent on the length of time the bandits spent at the scene of the crime. However, PW2 Jane's evidence is to the effect that she spent 15 minutes with the appellant. But for us, this is far ·from proving beyond reasonable doubt that she was able to identify the appellant. We find support for this reservation from the fact that -th-ere-is-no-scintilla of evidence on record to indicate. that when the witnesses eventually reported the incident to the police they gave any description of any suspect which would have helped the police in their investigations. The evidence on record is that of PW3 D/Sgt. Chacha who told the trial court that he arrested the appellant as well as two others (Utonga and Chimwemwe) were mentioned by Godwin Malanda as co-principal offenders. Th~ trial- court found Utonga and Chimwemwe with no case to 14 ,, \..'j answer. Although Malanda was convicted by the trial court, his conviction was quashed by the High Court as it was based o~ mere suspicions. So, as the appellant was arrested not on the basis of information received from the two witnesses, we have every reason to believe that their purported _identification evidence was not watertight. This possibility is supported by the. conditions prevailing at the scene of the crime. Apart from· the panic, the source of light and its intensity .at the scene of the cr.ime which, if bright, would have guaranteed the impeccability of the identification, Was -- not described at all. by the two witnesses. They only said that there was light in the sitting room;-' This was not enough. We are left with genuine doubts on whether this light was sufficient enough for a correct identification free from any possibility of a mistaken identity._ OL:Jr doubts are bolstered by the evidence of PW2 Jane to the effect that she was able to pick out the appellate at the identification parade because he was ''restless." This told it all. All in all, our objective re-evaluation of the visual identification evidence has led us to the conclusion that it was very weak and thus lacked cogency. In the absence of other independent corroborative 15 ground of appeal, therefore, succeeds. · In fine, we--hold that as far -as the· conviction of the appellant was based solely on the expunged .confessional statement (exh. P2) _and the·, doubted visual identifica·tion evidence; the same c·annof be sustained:·- We · · . . accordingly allow ·:this appeal in · its entirety. The conviction. for armed robbery and the sente_nce _.of 30 years imprisonment are her~by quashed and set aside. The appellant to. be released forthwith from prison unless he is otherwise lawfully held. DATED -at DAR ES SALAAM this 31 st day.of May, 2011. ,• ·- . E.M.K. RUTAKANGVyA JUSTICE OF ·APPEAL s; MJASIRl JUSTICE. OF APPEAL · W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the originaL Z.A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL 16