20111004 TZHC Mbeya

t IN THE H]IGH COURT OF TANZANIA. AT MBEYA I)C. CRIMINAL APEAL NO.57 OF 2008 (Original Criminal Case No.3 of 2006 of Mb arali District Court) AULELIAN MA CARl................... APPELLANT VERSUS THE REPUBLIC ..................... RESPONI)ENT JUI)GMENT 2.8.2011 &. 4.10.2011. Before MmiHa B. M.. j.: The appellant. Aureiian Magari and George Haule were charged l)efore the ])istrict Court of Mbarali at Rujewa with 1;wo counts; armed robbery c/s 287A of the Penal Code Cap 16 of the Revised Edition, 2002 as amended b y Act No.4 of 2004 and causing grievous harm c/S 225 of the same Act. While George Haule was acquitted, the appellant was convicted and sentenced to 15 years' imprisonment in respect of the first count and three years' imprisonment in respect of the second count. The appeal is against both conviction and sentence. The facts of the case were briefly that on 10" January, 2006 around 21.00 hours at Ubaruku village within Mbarali District in Mbeya region two bandits, one holding a pistl and the other one holding a bush knife assauli;ed the corn plaint Hamud Ilamed, and stole from him Tshs.l.03,000/=. They were alleged to have found the complainant and his law under section 240 (3) of the Criminal Procedure Act Cap 20 of the Revised Edition 2002. She further stated that the trial court erred in conducting a trial within trial in receiving the accused caution statement. She said that trial court ough.t to have made an inquiry instead of trial within trial. However, according to her, that does not amount to any injustice. She said that although thai: evidence was accepted and relied upon, but it ought to have been corroborated. She lastly submitted that, the trial Court erred in basing its judgment on the weakness of the appellant's defense by saying in its judgment that the appe]lani: was the one who committed the offence on account thai: he failed to tell the Court whether or not he met the thief who was being chased. She was of the view that the Prosecution side did not pro\'e the case against the appellant beyond reasonable doubts. 1. have carefully gone thr ough the submission of both i ...yes. . Let me start with the first ground that the appellant was not properly identified Admittedly, the appellant was arrested away from the place where the crime was committed, after being chased by good Samaritans l3oih of them did not explain how they managed to identify him. Having the incident occurred at night, one would have expected them to explain the nature and intensity of the light which enabled them to identify the appellant, the distance at which they identified him, and also the duration it took them to identify him. See the notorious case of Waziri Amaiii v. Republic [1980] T.L.R. 250. .19 Worse more, the complainant and his wife said they saw the appellant for the first time on the date of the incident. As such, I agree with Miss Msoffe tJiat it was imperative under such circumstances to organize an identification parade. I believe that if identification parade was conducted it would have given more light on the question of identification of the appellant by PW1 and PW2. in the case of Ntakko Aivan Ntipasuhile and 3 others v. Republic, Criminal Appeal No. 90 of 1993, CAT, Mwanza Registry (Unreported), the court quashed 4th appellant's conviction on account that the evidence of PW2 on which it was anchored was found to have been very thin. The court said:- "p\XT2 testified that he saw and identified the 4" appellant that night, that the appellant was armed with a gun and that he sou gilt to shoot him with it but the first appellant intervened and stopped it. PW2 went on to show that he knew the appellant by appearance. One would therefore expect PW2 to identify the appellant at an identification parade but there is no evidence that any such identification parade was held. There was only dock identification of the appellant by PW2 which we think was not sufficient to show, that he was within the locality where terrorist activities were perpetuated that night.... We think that the evidence tending to implicate the fourth appellant was too thin to support his conviction. The conviction is accordingly quashed." See also the case of Jandika Makwarija and another v. Republic, Cr. Appeal No. 1.75 of 1.991., CAT, Dodorna Registry (Unreported) and Ornary issa v. Republic, Cr. Appeal No.1.1. of 1.989 C.A..T at Mwaiiza Registry (Unreported) in view of what 1 have attemj)ted to say in this regard, I agree with 1)0th, the appellant and learned state attorney Gwa]tu that this ground this ground is meritorious and succeeds. The second ground of appeal alleges that the bush knife found with the appellant had no any blood stains to prove that it was the one used to cut PW4. This ground too has merits; let me demonstrate. Although the said hush knife was tendered in court as an exhibit. there was advanced no evidence to link that it was the weapon which was used to cut. PW4. In this court's view, absence of evidence to estaj)])sh whether or not there were any 1)lood stains on that bush knife render that exhibit useless. As such, this ground too is well grounded. The third ground touches on the PF3. The appellant has alleged that it was wrongly admitted by the trial court, a view shared by learned state attorney Miss Msoffe. She has submitted that it was admitted contrary to the recjuirements of section 240 (3) of the Criminal Procedure Act Cap 20 of the Revised Edition 2002. Let me hasten to say that I share their con cern. 6 There is no dispute that in admitting the said PF3 as evidence, the trial court flouted the provision of section 240 (3) of the Criminal Procedure Act which, as aforesaid, requires the trial court magistrate, whell it considers to admit a PF3 as evidence to inform an accused of his right to elect on whether or not he wishes the doctor who could have examined the victim to he called to testify. The section says:- "(3) When a report referred to in this section is received in 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-examination the person who niade the report; and the court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection." in our instant case, the PF3 was tendered by PW5. However, the court did not inform the appellant of his right to elect on whether or not to call the doctor who treated the victim as directed by the above provision. That therefore constituted an irregularity. The begging question is; what is the consequence for such an irregularity? There are several authorities which are to the effect that where this is the case, the court may expunge that evidence from the record. Depending on the circumstances of each individual case, it may proceed to determine the appeal on the basis of the remaining evidence, or where it thinks justice so demands, it may order retrial. Here, the court takes the first 7 OJ)tiofl; that evidence is expunged from the record to give room for ) determination of the case on the remaining evidence. Coming to the fourth ground, the appellant has complained that the trial court wrongly received the cautioned statement as evidence in that it was not voluntarily offered. On her part, learned state attorney Miss Msoffe has submitted that in fact, the trial court erred in conducting a trial within trial. With all due respect, she cannot be correct. Admittedly, there is no any law prohibiting the District Court. Normally however, while a 1)istrict Court is required to conduct an jncu]ry to determine admissibility of such document. a trial wii;hin trial is held in respect of trials before the High court because it sits with assessors. This was best expressed in the case of William s/o Shumba v. Republic, Criminal Appeal No.10 of 1998, Court of Appeal of Tanzania, Mwanza Registry (unreported). in that case, the Republic did not support the conviction of the appellant on the ground that, among others, the admission of a cautioned sta tern cut which contained a repudiated confession was improper. The learned judge of the first appellate court agreed with the learned state attorney for the Republic that the cautioned statement ought not to have J)een admitted as evidence against the appellant because a trial within trial was not conducted to enable the trial court to decide its admissibility. He said:- El "There is no discretion, in this in atter, either a tria] within trial is conducted and the admissibility of the statement is first estal)Iished I)y the prosecution or it is rejected outright." in reversing that decision on appeal to the Court of Appeal, that latter court said that:- ...the learned judge of the first appellate court appears to have overlooked the occasion and purpose for a trial within trial. As we understand it, a trial rjihiin trial is conducted in a trial with the aid of assessors (in our jurisdiction) or with a jury (in jurisdictions in which juries are used) in order to protect them (the assessors or meml)ers of the jury, as the case may be) from hearing evidence which in ay possibly be inadmissible. Ii is assumed. (sometimes perhaps wrongly) that since they are not legally trained, they would not be in a position to distinguish legally ad,m issible evidence from evidence which is legally inadmissible. If they would hear in admissible evidence, it might influence their opinion when they are asked to give them regarding the verdict in the case. Thus, in a trial within trial evidence is given in the absence of the assessors by prosecution witnesses as well as the defense witnesses, if need be, to enable the 9 judge to decide whether a piece of evidence is or is not admissible. Once the judge decides in a ruling that the piece of evidence in question is admissible, the assessors are then called in and that evidence, and the circumstances in which it was ol)tained, is g:iven all over again so that the assessors can hear it. if, on the other hand, the judge rules the evidence inadmissible, then the assessors will not hear it, and that is the end of the matter as far as that piece of evidence is concerned. See Spry, V.P. in the Court of Appeal for East Africa judgment in Ezekia s/o Silnl)amkali and Another v. R. (1972) H.C.D. n. 181". In the case at hand however, the situation is a bit different from the one cited above because here, the trial District Court conducted a trial wii:hi:n trial which is not at all fatal because as I have already pointed out: there is no law that prohibits the District Court from doing so. Most important, no injustice was occasioned by mere]y doing so. However, because the appellant is now saying that the said cautioned statement was not volunt;ary. the basic issue to follow however is whether or not: it was voluntarily offered. Admissibility of confessons to ])olice officers is governed by section 27of the Evidence Act. \Vhile sub section (1) of that section provides that a confession voluntarily made to a police officer by a person accused of an offe:nce may be proved as against that person, subsection (2) p]aces the 10 onus of proving that any confession made by an accused person was voluntarily made by him on the prosecution. On the other hand., subsection (3) explains circumstances under which a coiifess:io:ii may be regarded as having not been voluntary. It provides that:- "(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 n authoritv. In the case at hand the cautioned statement does not show that the appellant commjtted himself that he volunteered to offer the said statement. Upon a question asked of him on whether or riot he was piepaed to make a statement, the appellant is alleged to have said he desired to make it. Fiowever, lie was not made to sign there under to signify committal to his reply that he actually said what it is written. Admittedly, he did not sign. Omission to do so creates a doubt on whether or not the representation that he volunteered is true. As such, that doubt mus1 be resolved in al)pelJants favour that could be he did not volunteer as is being alleged. Thus, I hold that the cautioned statement of the appellant was improperly admitted and relied upon as evidence. I accordingly expunge that piece of evidence from the record.. Let inc now, tackle the fifth ground which alleges that the trial court did not consider appellant's evidence in defence. On going through the trial court's judgment, two things are clear; firstly that the appellant's evidence in defe:nce was glossed, and secondly that that court shifted the burde:n of proof on the appellant. The appellant had stated in his defence that he mate the persons who arrested him on his way back home from his shaml)a, and that on meeting him they asked if he had met a man heading from where he was coming from. The appellant's reply that he did not see anyone earned him the assumption that he was their culprit. He denied to have been involved in the alleged robbery. This piece of evidence was not given deserving consideration. Also, apart from not giving that. defence deserving consideration, that court shifted the burden of proof to the appellant:. The trial Magisirate stated at the first paragraph of the first page from the last, that:- "The accused evidence that he was from shamba and that he did (sic) not know anything about the stealing does not convince me because if al (at) all he was innocent he could not harm PW5 wit;h that: panga'. rfliat was ipsa facto wrong. ii; is trite law that the duty of provilmg the charge against the accused person lies squarely on the shoulders of the prosecution, it never shifts, the standard of which is beyond all reasonable doubt. See the case of 12 Mohamed Saidi Matula v. Republic (1995) T.L.R. 3. Accuscd's defence ) need only to raise a reasonable doubt into the eyes of the court and no more. See the case of Mwita and another v. Republic (1977) L.R.T. 54 where the court he]d that:- "The appeIlants duty was not to prove that their defences were true. They are simply required to raise a reasonable doubt in the mind of the magistrate and no iii ore". The appellants defence ought to have been rejected on the basis of the strength of the prosecution case, but not on the weaknesses of the defence case as it was. For reasons I have attempted to give, I agree with both, the appellant and learned state attorney Miss Msoffe that the prosecution did not prove the case against the former l)eyolld reasonable doubt. in the circumstances. this appeal has merits and is hereby allowed. In con ènte' tëc,çniviction is quashed and the sentence thereof is set fc/ / . aside' 'ihe cowl o4eis 1 appellant s immediate telease from pnson unless . :. he'ts hemg.continualIy held for some other lawful caused. — •...'. •pi)e al allowed. ' -p - gd: Mmilla, B.M. Judge 4.10.2011. 13 ]. certify that this is a true copy of the original Judgment. Th I- Hi MBEYA.. 14