20111019 TZHC Arusha

IN THE HIGH COURT OF TANZANIA ATARUSHA CRIMINAL APPEAL NO. 29'8' OF 2011 (C/F District Court of Arusha at Arusha in Criminal Case No. 75 /1998) BETWEEN GODFREY ANDREA .........................................·............ APPELLANT AND THE REPUBLIC ............................. ~························· RESPONDENT Date of last Order: 05/09/2011 Date of Judgment: 19/10/2011 JUDGMENT A.C. NYERERE, J Being aggrieved by the Judgment by F.J. Mushi, RM in Criminal Case No. 75 of 1998, the appellant herein preferred the present appeal on the following grounds; 1. That, the learned trial Magistrate erred in law and in fact for the admissibility of the exhibit tendered in Court. 2. That, the learned trial Magistrate erred in law and in fact by finding the appellant guilty on his defence of alibi. 1 3. That, the learned trial Magistrate erred in law and in fact by admitting and considering the alleged confession statement of the appellant which was obtained illegally. 4. That, the prosecution failed to prove their case beyond reasonable doubts. In this appeal parties agreed to argue the same orally. The appellant appeared in person while Miss. Komba learned State Attorney appeared for the Respondent/Republic. Arguing for the appeal, the appellant submitted that no witness testified to have seen the appellant at the scene of crime or rather managed to identify the appellant. It was the appellant's further submission that there was no corroborative evidence linking the appellant with the charged offence. The appellant further contended that he testified in defence before the trial Court but the trial Court refused completely to consider his defence evidence. Again, it was the appellant's submission that even when search was conducted in his house, he was not found with anything in respect of the alleged stolen properties. It was the appellant's prayer for this Court to go through the records of the trial Court so to arrive at a fair and just finding. In rebuttal; the learned State Attorney submitted for the 1st ground of appeal that the appellant never objected tendering of his Cautioned Statement thus inferring that the same was his statement. Miss. Komba 2 ' '' learned State Attorney contended that denying such statement at this stage amounts into just an afterthought. Substantiating for the 2nd ground of appeal, the learned State Attorney submitted that the appellant failed to adhere to the provisions of the law as provided for under section 194(4) - (6) of the Criminal Procedure Act, [CAP. 20 R.E, 2002] when one intends to raise a defence of alibi. Arguing in respect of the found stolen properties, the learned State Attorney faulted such supposition arguing that the evidence by PWl is very clear as it shows that the house of the appellant (who was staying with the co - accused one Lembris Philemon) was found with some stolen properties when searched. It was further submission by Miss. Komba learned State Attorney that PWl produced the alleged exhibits including the search order. Lastly, the learned State Attorney contended that though there was no witnesses who identified the appellant at the scene of crime, yet; the fact that the appellant was found in possession of some stolen properties shortly after the robbery suffices to prove the offence charged against the appellant before the trial Court. Thus; Miss. Komba learned State Attorney prayed for the appeal to be dismissed in its entirety. In rejoinder; the appellant submitted that the house which was searched was not his as he was living with his parents whereas the said house which belonged/belongs to his parents was not searched. Further, the appellant 3 submitted that the police officer took his Cautioned Statement without affording the appellant with his right for the Statement to be taken in presence of this relative or ten cell leader wi~h further argument that he was not even taken before a Justice of Peace in ascertaining the truth of the Cautioned Statement. Having gone through the Court records and respective submissions by the parties herein; disposition of the present appeal goes as follows. First; as rightly submitted by the appellant, there is no eyidence O{;l record to the effect the appellant was identified at the scene of the crime but from the evidence on record and from the fact that the appellant admitted the signature on the Cautioned Statement to be his i.e. the appellant O acknowledging to have made the same and since the appellant neither objected tendering of his own Cautioned Statement before the trial Court as an exhibit and nor did he raise an issue as to that he never made the same; what stands is that the said statement was really made thus leaving this Court with the issue as to whether or not the same can be relied upon in proof of the charged offence despite the appellant's submission that the same was illegally obtained. Second; viability of the Cautioned Statement reduces all other grounds of appeal including the defence of alibi baseless. Advancing the issue of confession statements, this Court will firstly look at what the law says regarding Caution Statements. The Evidence Act, [CAP. 6 R.E, 2002] provides for confessions whereas it states under section 27 of the Evidence 4 • . ,, '' ' Act, [CAP. 6 R.E, 2002] regarding admissibility of confessions to police officers that; "{1) a confession voluntarily made to a police officer by a person accused of an offence may be proved as against that person. {2JN/A (3) A confession shall be held to be involuntary if the court believes that it was induced by any threat, promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority'~ Further, section 29 of the Evidence Act (supra) _ regarding confe_ssion _ caused by inducement, threat or promise reads; "No confession which is tendered in evidence shall be rejected on the ground that a promise or a threat has been held out to the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be made'~ This position of the law was put into practice by my late learned brother Katiti, J:, in the case of JOSEPHAT SOMISHA M~IKU vs. REPUBLIC [1992] T.L.R 227 where he held that; "{i) While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a confession is not automatically inadmissible simply because it resulted from 5 . J ...... _, . '• threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission ofguilt; {ii) where you have threats and a confession far apart without a causal connection, and no chance of such threats inducing confession, such confession should be taken to be free of inducement, voluntary and admissible". Again, the Court of Appeal of Tanzania held in the case of THADEI MLOMO AND OTHERS vs. REPUBLIC [1995] T.L.R 187 that; "{i) under s 29 of the Evidence Act 1967 an involuntary confession is admissible if the court believes it to be true". From the above, since the Cautioned Statement by the appellant carries with it all that the law requires for it to worth to be relied upon; this Court hesitates not to find the charged offence against the appellant to have been properly proved as required by law. Since the appellant was sentenced to 5 years imprisonment, it is certain that the same has been already set free. But in case the appellant is yet to serve his sentence, the appellant is ordered to complete serving his sentence before been released from prison unless lawful held. From the premises, the appeal is hereby dismissed. It is so ordered. 6 . /~CV A.C.(~~RE JUDGE 19/10/2011 Judgment delivered in chambers this 19th day of October, 2011 in the presence. of the appellant in person and in absence of the· learned State Attorney who was duly aware of today's date. , .,. · A.C.&ERE . JUDGE 19/10/2011 7