20110228 TZHC Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: RUTAKANGWA, J.A., MJASIRI, l.A., And MASSATI, J.A.) CRIMINAL APPEAL NO 195 OF 2007 ABDALLAH JEJE@ MALIMI MABULA ................... ~ .....•. APPELLANT · VERSUS THE REPUBLIC ................................................... RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Magu) (Mchome, J.) dated the 9 th day of February, 2007 ,n Criminal Sessions Case No. 218 of 2001 JUDGMENT OF THE COURT 21 & 28 FE13RUARY, 2011 MASSATI, J .A.: The appellant, ABDALLAH JEJE @ MALIMI MABULA, was charged ·. with the offence of murder, contrary to section 196 of the Penal Code (Cap 16 - R.E. 2002). At the trial that was conducted at Magu, the High Court .I / (Mchome,J.) convicted him as charged and s~ntenced him to the 1 mandatory sentence of death by hanging. He has now come to this Court,· to appeal against both the conviction and sentence. The facts as found by the trial Court, were that JOSEPH WILLIAM, who was a watchman with an organization called CARE, was found dead by his co-workers, on the morning of 2/4/98. Beside the deceased's dead body were also found, a hoe and two stones. Several items including a torch, a radio call antennae and two motorcycle helmets were stolen from the office. Following a tip from an informer, the police were able to trace and arrest the appellant and another person. When his room at Butimba, Mwanza, was searched, several items including a red· torch, make ''National'/and several ''housebreaking//instruments were found. When the police introduced themselves as from Magu police station, the appellant panicked and drank some pungent smelling liquid from a 20 litre jerry cane. Believing that the appellant had taken poison, the police first administered first aid by giving him milk, which the appellant refused to take, but later after collecting a PF3, took him to Sekou Toure hospital where he was admitted for a day. When he was well enough, the police, took his cautioned statement, Exhibit PS, and later took him to a justice of 2 the peace, where he offered an extra judicial statement (Exhibit P3). It I> was after these that the appellant and another person, ISACK S/O BUMALA, were arraigned for the offence of murdering JOSEPH WILLIAM. However ISACK BUMALA expired before the beginning of the trial and so the case against him abated. To prove all these facts, the prosecution produced 6 witnesses and 5- ex:hibits, 4 of which were documentary. In his defence the appellant denied committing the offence, and retracted the cautioned statement, the extra judicial statement, and also claimed that the torch found with him was his. In convicting the appellant, the trial court, being satisfied that JOSEPH WILLIAM was dead and that the cause of death was head injury, was convinced that the appellant was responsible for it. In reaching that conclusion, the learned trial judge found that the extra judicial statement 3 and the cautioned statement contained nothing but true confessions, which were corroborated by the red torch and the house breaking instruments found in his possession and his attempted suicide by taking a lethal poison. · It is those findings that the appellant seeks to assault in the present appeal. Before this Court, the appellant was represented by Mr. Silveri Byabusha, learned advocate. The Republic/respondent was represented by Mr. David Kakwaya, the learned State Attorney. Mr. Byabusha, initially filed a single ground memorandum of appeal, in which he attacked the trial court's irregularity in not informing the appellant of his rights to enter defence under section 293(2, of the Criminal Procedure Act (Cap 70 - R.E 2002). Then, before the appeal was called for hearing, he filed a supplementary memorandum of appeal containing three other grounds, which he labeled 2,3, and 4. In grounds 2 and 3, he attacks the admissibility of the extra judicial statement and the cautioned 4 statement. In ground 4, he attacks the trial Court's finding on the . identification of the torch. At the hearing Mr. Byabusha, abandoned . the first ground _by conceding that a recent decision of this Court (which he did not mention), rendered the said ground redundant. After this we allowed him to argue his _supplementary grounds of appeal as numbers one, two and three respectively. On his first ground of appeal, Mr. Byabusha submitted that since the appellant is alleged to have made the extra judicial statement (Exhibit P3) in the presence of a police officer, it was wrongly admitted. On the authority of MSAFIRI JUMANNE AND TWO OTHERS V R (CAT) Criminal Appeal No, 187 of 2006 (unreported) he asked us to expunge it. On the second ground, Mr. Byabusha submitted that since the voluntariness of the appellant's cautioned statement (Exhibit PS) was retracted, it could not have been admitted without testing its vo_luntariness, and the assessors should not have known about this statement until it was 5 properly admitted. For this he relied on MORRIS AGUNGA AND 2 ~OTHERS V R (CAT) Criminal Appeal No. 185 of 2006 (unreported). On the last ground, Mr. Byabusha submitted that, the torch, found with the appellant, was not properly identified to have belonged to the deceased, since it was a common article which, according to PW6, was also available in shops, and anybody could buy it. With those arguments, Mr. Byabusha, submitted that the prosecution case, less the appellant's alleged confessions, whose admissibility was problematic, was not proved beyond reasonable doubt. He asked us to allow the appeal. On his part, Mr. Kakwaya, the learned State Attorney did not support the conviction. His reasons were that the appellant's alleged confessions were not properly admitted in evidence and accorded undue weight by the trial court. This was so because the cautioned statement was admitted at the defence stage during eras-examination, and its voluntariness, challenged, by the appellant; while the extra judicial . statement was tendered by PWS who was not listed as· a prosecution witness without notice. The rest of the circumstantial evidence was not conclusive. 6 In the course of hearing the appeal we also asked the learned counsel to address us on whether "the memorandum of matters not in dispute'' was properly drawn during the preliminary hearing- and so, whether the post-mortem examination report (Exhibit PI) was properly admitted. And also whether the matters shown to be not in dispute were properly arrived at. Both_ counsel agreed that the memorandum of matters not in dispute, and the contents of Exhibit PI (the post-mortem examination report) were not explained to the appellant, and so not properly drawn and admitted. So they prayed that Exhibit PI should be expunged from the record,·· and the facts, allegedly not disputed should not have been deemed to have been proved in terms of section 192 (4) of the Criminal Procedure Act.(Cap. 20 R.E. 2002) ("the CPA"). That means that the prosecution still had a duty to prove the death and the cause thereof of JOSEPGH WILLIAM beyond reasonable doubt. 7 From the established facts and the submissions of the learned counsels this appeal raises only one issue which is of mixed fact and law. That is, to say, whether there is in fact any evidence, and if so, whether that evidence is sufficient to sustain the conviction of the appellant? We say so because, in our considered opinion, it is not enough to simply find that there is evidence on record. What matters in any trial is not whether there is evidence, but whether the said evidence .is sufficient. For evidence to be sufficient it must be shown that:- (a) the said evidence was legally admissible, (b) the evidence was credible and accurate, ( c) the evidence was relevant, material, and competent and (d) the evidence meets the standard of proof requisite in the particular case, otherwise referred to as the weight of evidence, or strength, or believability. When the evidence meets those tests, it is said to be sufficient for the purposes of determining the particular case. So in a civil case, it is said to be proved, if the court is satisfied that a party's evidence would suggest that something is more likely to be one way than another (balance of probabilities). In a criminal case, that proof must be beyond reasonable 8 doubt. Which does not mean proof beyond all possible doubts, or to a mathematical certainty. Possible doubts or doubts based on conjecture, speculation or hunch are not reasonable doubts. A reasonable doubt is a fair doubt based on reason, logic, common sense or experience. It is a doubt that an ordinary reasonable person, after weighing all the evidence, would hesitate to act in matters of importance to his or her life. It may arise from the evidence itself, or from lack of evidence, or from the nature of the evidence. With the above guidelines, we now turn to evaluate the evidence in the present case. As hinted above, in convicting the appellant, the trial court relied on (i) Circumstantial evidence (ii) the appellant's confessions and (iii) the matters not in dispute drawn in the preliminary hearing. We shall start with the matters not in dispute drawn at the end of the preliminary hearing. At the preliminary hearing, the following matters were recorded as undisputed .. 9 "l. That the watchman Joseph William is dead. 2. That the cause of death was as shown in the report Exhibit PI." According to the court, Section 192(3) of the CPA (was) "complied with". But this Court has repeatedly said that:- "The necessity to read and explain the memorandum to the accused is highlighted by the provisions of rules 4 and 6 of the Accelerated Trial and Disposal of Cases Rules/ 1988 made under section 192 (6) of the CPA 1985 ............................................... It is apparent that a statement by counsel or advocate for the accused to the effect that the matters raised are admitted is not sufficient under the law. It is the accused himself who 10 must indicate what matters he or she ,./ •t:s.... aumt H (see MT 7479 SGT BENJAMIN HOLELA V R (1992), TLR. 121 (CAT). And in BAHATI MASEBU V R (CAT)(Mwz) Criminal Appeal No. 135 of 1991 (unreported) the Court interpreted the phrase "facts of the case" in rules 4 and 6 of GN 192/88, to include: "material contained in documents like extra judicial statements, autopsy reports and sketch plans." And that: ''it is thus essential that the materials in such documents also be read and explained to the accused and that"it is the accused and not his advocate, who should be asked to state the facts which ·he admits. " 11 What happened in the present case is reflected on page 2 of the record. After giving a summary of the facts, the prosecuting State Attorney concluded:- "The body of the deceased was examined The doctors reports say that death occurred as a result of head injury. We tender the post- mortem report. Mr. Kweka (accused's advocate) . No ojection Court Postmortem Report Exhibit PI. " It is from the contents of Exhibit PI that the two facts "not in dispute" were drawn. It leaps to the eye that the contents of Exhibit PI were not explained and that it was his advocate, and not 'the accused who was asked to state the facts which he admitted. As shown above this is not 12 what section 192(3) of the CPA requires. So it was not correct, for the trial court to record that, that provision was complied with. The consequences of non compliance with that provision are clearly spelt out in section 192(4) of the Criminal Procedure Act, and also in HOLELA'S case. The effect is that the alleged "matters not in dispute'' "arrived at in contravention of the provisions will not be regarded as proved, and so the prosecution has to call in evidence to prove them. In conclusion, we have to state that Exhibit PI, the post-mortem examination report was not properly admitted, and is hereby expunged. The position now as before, is that although the fact of the death may have been proved by PW6, the cause of the death of JOSEPH WILLIAM, in the absence of the postmortem examination report, was not proved by the prosecution. Next, we will consider the circumstantial evidence that the trial Court partly relied on in this decision. The learned trial judge heavily relied on the torch that was found in the appellant's possession, his conduct in 13 ''attempting,, to commit suicide which the learned trial judge found as a fact, and the fact that the appellant was found in possession of "house breaking tools. ,, The probative value of circumstantial evidence rests on inferences which mean, mental linkages based on generalizations derived from human experience. But in criminal cases such evidence must meet three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and finaly established (the primary facts), (ii) those circumstances should be of a definite tendency unerringly pointing to the guilt of the accused, and (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (see SARKAR ON EVIDENCE, 15th ed 2002 reprint Vol I act P. 63). 14 First with regard to the alleged poison taking, the appellant denied during his defence that, what he took was poison and that although he was admitted at Sekou toure hospital, he was never in fact sick. But the learned trial judge rejected that defence because in his view, "the punget smelling liquid" must have been poison, and because also "I do not believe our hospitals (sic) irresponsible as to admit in hospital a perfectly well person. " With respect, we think that the question whether or not the substance taken by the appellant was poison, or that at the hospital the appellant was treated of poisoning, were primary facts that the prosecution ought to have proved first before building any inferences as to whether or not the appellant did it. It was not proper to have left them to conjecture or surmises which the trial court used in arriving at the finding that the substance was indeed poison. Some more cogent evidence, possibly an expert opinion from a chemist or the doctor who "treated" the appellant or 15 the PF3 used to treat him should have been produced. Such cogent evidence was lacking here. Although PW2 said a PF 3 was issued, it was not produced. It cannot therefore be said that the fact that the appellant took poison was established. That being the case the inference that the appellant "took poison// out of guilty conscience or fear of the police from Magu, was wrongly reached. Second in his judgment, the trial Court found that the appellant was found with:- 1. one torch, make National Panasonic 2. one calculator 3. 16 heck -saw for cutting steel 4. 2 pliers 5. Seven spanners of different types 6. Nine padlocks 7. Seven keys 8. Steal bars for house breaking 16 9. 2 screw drivers 10. 18 bolts for opening vehicles 11. 1 jerry cane of insecticide and several other items. He said that these were listed in the Record of Search by Police, Exhibit P2. However Exhibit P2 does not contain the list of such articles but it refers to a "Certificate After Search." This Certificate After Search itself was either not tendered along with the Record of Search, or was omitted from the record. But even if it was tendered it would not be a substitute for the articles themselves (the real evidence) which in our view if they were relevant ought to have been tendered as exhibits along or separately from the certificate. If those articles were relevant but not produced as exhibits, the effect is to reduce their weight in evidence, and as such we cannot agree with the finding that those articles (to be specific, the housebreaking instruments) were indeed, found with the appellant. Again, this primary fact, was not in our view proved, before drawing any inference which the trial Court did, that the appellant could have been at the scene of crime-and cut the fencing· wire into the premises at the scene of crime. Like, in the case of poison, we do not think that inference was justified. 17 We are now left with the third piece of circumstantial evidence, the appellant's possession of the torch "National." This, the appellant admits, but claims that it was his. It was therefore incumbent for the prosecution to prove that it belonged to CARE, before the doctrine of recent possession could be invoked to coQ_nec::t tb~__flpp_ellant _with th.e commission-of the crime in question. As this Court said in ALHAJI AYUB @ MSUMARI AND OTHERS V R· (CAT), Criminal Appeal No. 136 of 2009 (unreported), it was essential for the prosecution to prove ownership of the complainant to the property, beyond any reasonable doubt before the doctrine of recent possession could be properly invoked. The appellant claimed ownership of the torch, and that he bought it from the shops but had lost its receipt. The prosecution did not cross examine on this issue, but when PW6, SAIDA KAMALAMO, who tendered the torch as Exhibit PS, was examined by the Court, she said:- ''Such torches can be obtained in shops. Anybody can buy them.'' · 18 This piece of evidence introduced another possible view, that any other person, including the appellant could have owned the torch legally, particularly in the absence of any special marks on Exhibit PS that could have (differentiated?) it from other similar torches. Now, in law, where there are two possible views on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, a court of law must adopt the one favourable to the accused. Contrary to the trial court's finding therefore, we do -not agree that PW6 ''identified it as one of those in her offlce,,beyond any reasonable doubt. It was therefore again wrong on the part of the trial Court to have drawn any inference of guilt on the appellant's possession of the torch. We are aware however, that the learned judge was quite alive to the dangers of relying on such circumstantial evidence, because in his judgment p. 6, he observes:- "The three pieces of circumstantial evidence I pointed out above are capable of other interpretations other than that of accused's 19 guilt. They can lead to inferences and hypotheses other than of accused's guilt. I'/ But then the learned judge went on to convince himself that the circumstantial evidence was corroborated (or vice versa)by the appellant's extra judicial statement and the cautioned statement, which the court found to be ''confessions. I'/ The admissibility and weight of the said confessions is the subject of contention spearheqded by Mr. Byabusha, in his supplementary memorandum of appeal. In contesting the admissibility of the extra judicial statement(Exhibit P3) made by the appellant, Mr. Byabusha submitted that it was not an extra judicial statement because, it was made while the appellant was in the custody of the police. For that he referred to us the decision of the Court in MSAFIRI JUMANNE AND TWO OTHERS V R (supra). Mr. Kakwaya, the learned state Attorney was of the view that the admissibility of the extra judicial statement was problematic, because PWS 20 was not in the list of prosecution witnesses and the notice to call him did not disclose the substance of the alleged exhibit as required by law. We have studied the decision of this Court in MSAFIRI's case but we do not think it is necessary for us to decide the present case, on the basis of that precedent. We shall leave the discussion on that decision to a more fitting occasion. In the present case, it will suffice if we go along with the argument of Mr. Kakwaya. It is true that PWS was not in the PI list of witnesses, and that the record shows that the prosecution gave notice to produce the extra judicial statement. We accept that both the prosecution and the trial court were entitled to give notice and allow the calling of additional witnesses respectively, under section 289 (1) of the· CPA. But with respect, what happened in the trial court was not satisfactory. On 11th November, 2005, the State Attorney said:- "The Republic applies for time to give a notice in writing to summon that (sic) key witness a retired police/ one C5004 Det. Cpl. Sosthenes 21 who took the cautioned statement of the accused. We pray further to give notice now that the Republic will tender in evidence the extra judicial statement of the accused. Mr. Makowa. The defence has no objection if the Republic believes its vital evidence was left out. Court The depositions in the court record indicate that the witnesses who recorded the accused's cautioned statement was not listed during the preliminary Hearing, Further, there are two extra judicial statements in the Court record of the accused and co accused of which no mention, is made in the PH, It is in the interest of justice that the prosecution prayer be granted." That means that the prosecution prayer was granted there and then. ·. But section 289 (1) of the CPA requires such notice to be in writing. 22 Section 289 (2) also requires such notice to state the name and address of the witness and the substance of the evidence which he intends to give. From the record, first it is not clear if the notice in this case was given in writing, (for there is none in the record) but it is too apparent that the notice was given orally. Two, it was not shown even in the oral notice, the name and address of the said additional witness who would tender the extra judicial statement. Three, the substance of the intended additional evidence wa? not disclosed. Since section 289 (1) and (2) are couched in mandatory terms and since they govern an accused's right to know the evidence against him in advance, the infractions of those rights ,, are fatal, - more so because PWS who tendered the extra judicial statement was not even listed in the "oral notice" to call additional witnesses. In our view therefore, PWS should not have been. allowed to testify, and produce the extra judicial statement (Exhibit P3). So we agree that Exhibit P3 was not properly admitted, and as a matter ·of course, should be and it is hereby expunged from the record. . 23 Mr. Byabusha's next ground of appeal was on the admissibility of the cautioned statement (Exhibit PS). He submitted in effect, that, it should not have been admitted in evidence without first ascertaining its voluntariness. He relied on two decisions of this Court, (SAIDI MOHAMED MRIMI V R (supra) and MORRIS AGUNGA & 2 OTHERS V R (supra)). He submitted that even if the prosecution attempted to produce it at the defence stage in cross examination, once the appellant informed the court that he was forced to sign it,. the trial court had a duty to test its voluntariness in the absence of the assessors, and even if the appellant's~ advocate had no objection. So he prayed that Exhibit PS too, should be expunged from the record. Mr. Kakwaya's response was that since Exhibit PS was admitted during cross examination of the defence, there was no need for a trial within trial but then the trial court should not have relied on it as substantive evidence because, according to section 154 and 164 of the Tanzania Evidence Act (Cap 6. R.E. 2002) the purpose of introducing such documents in cross examination is "to contradict a witness" as to his 24 previous statement" (S.154) or to impeach the credit of a witness (S. 164 (c)). We sadly note that although the -record shows that the police officer No. c. 5004 Det. Cpl. Sosthenes, was intended to be called as an additional witness, specifically to tender the cautioned statement, he was in fact not called, but the worst is that the cautioned statement was not produced by any of the prosecution witnesses. Since under section 27 (2) of the Evidence Act, the burden of proving that the confession. was voluntary is on the prosecution, and since the prosecution did not discharge that burden, it was wrong to treat Exhibit PS as a "confession"for the purposes of section 27 of the Evidence Act. We agree with Mr. Kakwaya that the purpose of tendering a witness's statement in cross examination could only be for the purposes of contradicting or impeaching him by pointing out contradictions between his testimony and his previous statement. It is not clear in the present case, what contradictions did the prosecution seek to prove in which of the 25 ·1 appellant's statements. If it was intended that the cautioned statement was that 'previous" statement, the prosecution had first. to prove that the appellant had voluntarily made that statement. Here the appellant denied to have voluntarily made the statement (Exhibit PS) and since the prosecution had lost the chance to prove it so, they could not do so in cross examination, because that would amount to shifting the burden of proof of v'oluntariness to the defence. For these reasons we again agree that the trial court was wrong in law to use the statement as a "confession" without first satisfying himself that the prosecution had proved its voluntariness. We accordingly expunge Exhibit PS too. After expunging exhibit PI, P3 and PS, and discarding all the pieces of circumstantial evidence used by the trial Court to convict the appellant, we are left with no evidence at all, let alone sufficient evidence to sustain the appellant's conviction. We accordingly allow this appeal. The conviction is quashed and the sentence set aside. We order his immediate release from prison, unless he is otherwise lawfully held. 26 It is so ordered. DATED at MWANZA this 28 th day of February, 2011. E. M. K. RUTAKANGWA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original. c::: )s -· 1J J.S. MGETTA DEPUTY REGISTRAR COURT OF APPEAL 27