20110303 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA, AT DAR ES SALAAM, CRIMINAL APPEAL NO; 59 OF 2009 (Original Criminal Case no; 179/2007 of the District Court of Rufiji at Kibiti). MUSSA OMARI .................................................................A.PPELLANTS Versus; REPUBLIC .............................................................. RESPONDENT JUDGEMENT; 18/11/2010 & 03/03/2011 . Before; Utamwa, J. This is an appeal by Mussa s/o Omari, the appellant, against the ·decision of the District Court of Rufiji (the Trial Court). Before the trial court, the appellant was charged with and convicted of the offence of rape c/s 130 of the Penal Code (Cap. 16, R. E. 2002) as amended by the , Sexual Offences Special Provisions Act 1998. The appellant was consequently sentenced to serve 30 years in prison and to suffer 12 strokes of the cane. He is now appealing against both the conviction and sentence. nd ~efore the trial court it was alleged that, the appellant on the 2 day of November, 2007 at or about 09. 30 hours at Matamba village . within Rufiji District did have carnal knowledge to Sikujua d/o Omary Page 1 of 15 Matimbwa, a girl studying at Mkombozi Primary School in standard three without her consent. The prosecution evidence is to the effect that on the material date and time the complainant and three other girls, Siwatu d/o Athumani, Nunu d/o Azizi and lmani d/o Saidi (PW. 1, 2 and 4 respectively) went to collect mangoes, the appellant and other two boys then arrived at the area and asked the girls to go with them to another place for more fruits, but latter one of the boys disappeared. On the way to the alleged other place, the appellant and the other remaining boy ordered the girls to undress and lie down or otherwise they would slash them by a knife which one of the boys held, the girls obeyed the order, hence the appellant removed his trouser half way and engaged the complaint (Sikujua, PW. 3) in which said process he inserted his penis into her private parts causing her pains, she made an alarm for a help. The other boy engaged PW. 1 for the same mission, but Pw. 2 escaped as ~he was not in trouble at that particular moment, she thus made an alarm for help, but the two boys run away. PW. 4 supported the evidence of PW. 1-3. It was also the evidence by the prosecution before the trial court . that one Hamisi s/o Litawise (PW. 6) heard the alarm by the girls and went to render assistance, but he arrived at the scene when the appellant and that other boy had escaped. PW. 6 however, saw the 4 girls naked, and the. complainant and PW. 1 complained to him that they had been raped. The matter was reported to police where the complainant and Pw. 1 informed the police that they had identified the rapists. The complainant was medically attended as per exh. P. A, the Police Form no. 3 (P. F. 3). The appellant was arrested two days thereafter upon being seen by Pw. 2 at the market place. Having been Page 2 of 15 ,. arrested, the appellant confessed that he had committed the offence and his cautioned statement was made and tendered in evidence as Exh. P. B. On his part the appellant defended himself saying that on the material date and time he was not at the scene of crime, but he was at his working place, in a saw mill at lkwiriri, he then went home where he fall sick and took a rest, the next day he was better but was arrested by the police for these allegations. In his Petition of appeal which the appellant erroneously titled it as a Memorandum of appeal, which said error I hold, not fatal under the circumstances of this appeal, the appellant preferred 7 grounds of appeal in the layman's style, which said grounds can be boiled down to only 3 as follows; 1. That the trial court erred in law by convicting the appellant against the weight of evidence. 2. That the trial court erred in law in not summoning the medical officer who authored the PF. 3 for the appellant's cross- examination. Generally, in his grounds of appeal the appellant lamented to the effect that the prosecution witnesses were not reliable and the girls did not properly identify him, and it is more so when one considers the fact that no identification parade was mounted for the identification purposes, he also challenges the cautioned statement to be unreliable. On the hearing date, the appellant had nothing to add to his grounds of appeal. The respondent Republic through the care of Ms . . Mkonongo learned State Attorney did not object the appeal following serious irregularities into the trial court's proceedings, she pointed out Page 3 of 15 the irregularities as follows; that the prosecution case was based mainly on the evidence of the 4 girls, PW. 1- 4 who were children of 13 years at the time of their testimony, but no respective voire dire was done for each of them as required by S. 127 (2) of the Evidence Act (Cap. 6, R. E. 2002) though they testified on affirmation. The learned State Attorney argued therefore that, this was a serious omission to render their evidence inoperative, she also argued that the error vitiated the proceedings as per the decision of the Court of Appeal in Leonard Mdemu v. Republic, Criminal Appeal no; 81 of 2008, at lringa (unreported). The learned State Attorney also put it that the PF. 3 was admitted in evidence by the trial court without informing the appellant of his right to cross-examine its author as mandatorily required by s. 240 (3) of the Criminal Procedure Act (Cap. 20, R. E. 2002), she added that this was another serious irregularity capable of vitiating the proceedings. The learned State Attorney thus prayed this court to order for a retrial under S. 388 of Cap. 20. There are therefore, two issues to be determined before ·I consider the merits of the appeal, these are the following; 1. Whether or not there are serious irregularities warranting the nullification of the proceedings of this matter~ and if the answer is in the affirmative then; 2. Whether or not a retrial should be ordered under the circumstances. Page 4 of 15 As to the first issue, I am in total agreement with the learned State Attorney that at the time of testifying PW. 1-4 were children of tender age for the purposes of evidence because Pw. 1, 2 and 3 were recorded as being 13 years old each while Pw. 4 was 12 years. According to S. 127 (5), for the purposes of a voire dire the phrase "child of tender age" means a child whose apparent age is not more than fourteen years; It was thus mandatory for the trial court to conduct the voire dire before it recorded their evidence, but this was not done. It is trite law now that failure to conduct voire dire before receiving the evidence of a child of tender age, subjects the evidence to be expunged from the proceedings and vitiates the proceedings of the trial court, and it is more so where the evidence at issue forms the basis of conviction; see Leonard Mdemu v. Republic (supra) and many other decisions of the Court of Appeal and this court. I also agree that the trial court based much the conviction on the evidence of PW. 1-4 and the cautioned statement (exh. P. B). It is also evident from the record that the cautioned statement was not free from difficulties. Though the trial court in its judgement indicates that the appellant did not object the tendering of the statement in evidence, the proceedings do not testify to that effect. According to the record, the statement was tendered in evidence by PW. 7, a Police Officer, and it is plain that the trial court during the testimony by PW. 7 just received and marked the statement as exhibit P. B without first asking the accused as to whether or not he had any objection to the document. It is not clear therefore as to when and how the appellant conceded to its admission as alleged by the trial court in its judgment, and if he did, that aspect of evidence is not manifest into the records, and this being an appellate court, it cannot agree with the trial court's Page 5 of 15 contention that the appellant had conceded to the admissibility of the statement in evidence, and it is more so when this court is aware of the challenges lodged by the appellant against that document in this appeal. Appellate courts normally work on not only the final judgement of the trial court, but also on the record of the trial court generally. In other words, I am holding that what is stated into a judgement of the trial court must always be reflected into the proceedings of that court. I thus find that the Appellant was not given such an opportunity to challenge the said confession before it was admitted in evidence, this omission deprived the appellant of his right to be heard on the admissibility of the statement. I hold further therefore that, like the evidence of PW. 1-4, the cautioned statement was erroneously admitted in evidence, for the law requires that in tendering such the alleged confession in court the accused person mu~t first be given an . opportunity to see such exhibit and lodge his challenge (if any) against the same before the court makes an order whether or not to admit it in evidence, and the record of the trial court must transparently disclose this process; Twaha Ally and 5 Others v. Republic, Criminal Appeal No; 78 Of 2004, at Dar Es Salaam (TCA). As to the PF. 3, though I concur with the learned State Attorney submission as far as the stance of the law is concerned, I do not think that none compliance of the provisions of S. 240 (3) of Cap. 20, R. E. 2002 by the trial court in this matter caused any injustice on the part of the appellant for, by reading the so called judgement of the trial court, it is clear that it did not take the P.F. 3 into consideration in entering the conviction. I thus take this argument lightly. There is yet another serious irregularity which is manifest in the record of the trial court. The charge against the accused person is Page 6 of 15 '\ preferred under s. 130 of Cap. 16, the anatomy of which is to this effect; it contains five sub-sections, and sub-section 2 embodies sub- sub-sections (a)-(e) describing various acts which the law declares as amounting to rape. But in the charge sheet at issue no subsection, let alone a sub-sub-section was specified as the one offended by the appellant so as to enable him clearly know the circumstances under which he is allegedly committed the offence. On the other hand, the allegations in the evidence points out that the victim of rape (PW. 3) was 13 years old, which said situation would squally fall under the provisions of s. 130 (2) (e) of Cap. 16. These provisions are to the effect that, a male person commits the offence of rape if he has sexual intercourse with a girl under the age of 18 years with or without her consent unless she is his wife who is fifteen or more years of age and is not separated from the man. Under these circumstances, it was obligatory for the charge sheet in the case at hand to disclose these facts and mention the age of the victim of the offence, but the charge sheet was mute as far as this material fact is concerned. It was not enough for the charge sheet to merely mention that the victim was studying in standard 3 at a primary school for, that act of studying did not amount to the disclosure of the age for the victim as the law would require, this is because s. 130 of Cap. 16 did not in any way declare the act of having sexual intercourse with a standard 3 pupil as rape though it may be true that girls in standard 3 are normally far below the age of 18. Worse enough, the charge sheet included the element of want of consent on the part of the victim as if she was an adult woman at the material time, which said situation would have invoked the provisions of s. 130 (2) (a) of Cap. 16 which are to the effect that; a male person Page 7 of 15 commits the offence of rape if he has sexual intercourse with a girl or a woman, not being his wife, or being his wife who is separated from him without her consent to it at the time of the sexual intercourse. It is the law that a charge sheet must clearly disclose all the elements of the offence to enable the accused understand the offence with which he is charged; this is the spirit in s. 132 of the Criminal Procedure Act, 1985 (Cap. 20, R. E. 2002). It is mandatory therefore, for any charge to observe the requirements because, in law, the aim of the charge sheet is to inform the accused of the substance, essence and particulars of the offence he is charged with; see the reasoned observations of Othman J. (as he then was) in Justin Nyali and another v. Republic, HC Criminal Appeal No; 37 Of 2006, at Arusha (at page 38). It is for this ground that the Court of Appeal in Mohamed Kaningo v. R, [1980] TLR. 279 directed that, to convict an accused person of an offence as set out in the statement of offence but not disclosed in the particulars of the charge offends against the basic principles of criminal practice that the accused must know clearly what the charge against him is. The general effect of the charge sheet in the case at hand is that, it might have caused a serious confusion and prejudice on the part of the appellant under the circumstances of this case, his conviction was therefore based on an incurably defective charge sheet. Again, the way the trial court conducted the preliminary hearing under S. 192 of Cap. 20, R. E. 2002, which said preliminary hearing would have otherwise benefited the appellant to know better about the nature of the case against him, was also flawed. The trial court according to the record, just briefly jotted down that fact no; 1 had been admitted and facts no; 2-18 had been disputed. It did not indicate what those facts were, and there was neither the list of witnesses nor that of exhibits, there was also no any memorandum of agreed matters Page 8 of 15 though it was indicated that the appellant signed by endorsing his thumb at the bottom of the jotted down script. This was surely a practice against the spirit in S. 192 (1)-(4) of Cap. 20 and could neither help the appellant in understanding his trial better considering the defects into the charge sheet nor serve the primary purpose for introducing the process of preliminary hearing into our law, i. e. reducing number of witnesses and time for trial and serving the costs for the trial. There is once more another grave irregularity. This one relates to the odd style of composing the purported judgment adopted by the trial court. S. 312 {2) of Cap. 20, the major statute governing criminal proceedings before the trial court and this court mandatorily calls for a judgment like the one at issue to contain inter a/ia, the point or points for determination, the decision thereon and the reasons for the decision. Contrary to this statutory command, the trial court upon summarising the evidence on record directly declared that the prosecution had proved its case against the appellant beyond reasonable doubts; it found him guilty and sentenced him. It did not bother to outline the points of determination (commonly branded as to framing of issues). Had the trial court framed the issues, it could get a forum for examining whether or not the charge before it had disclosed all the necessary ingredients of the offence of rape with which the appellant stood charged, and through this process it could discover that the charge sheet before it was erroneous as I have observed herein above. Again, it is through this important legal process that the trial court could detect as to whether or not the evidence before it had actually proved the charge beyond reasonable doubts. This creature Page 9 of 15 made by the trial court purporting to be a judgement was therefore, not a judgement before the eyes of the law for this reason. Over again, the trial court committed another blunder in its judgement. Upon summarising the evidence on record; it did not at all consider the defence of the appellant when it was deciding on his guilty. It just made itself busy with the prosecution evidence and ultimately it declared the appellant guilty. The trial court had the duty to also consider the appellant's defence, which in law amounted to an alibi, and make a finding whether or not it rejected it before it found him guilty, but it did not do so. Failure by a trial court to consider the defence amounts in law to a serious misdirection by the trial court; Hussein ldd and another v. Republic 1986 TLR 166 (CA). I am therefore; convinced as rightly argued by the learned State Attorney that the irregularities she pinpointed out are serious enough to vitiate the proceedings of the trial court, and it is more so considering the additional abnormalities I have just demonstrated here in above. The obvious cumulative effect of these misdeeds was the prejudice on the part of the appellant by denying him a Fair Trial. The minimum standards of Fair trial in law involves the right of the accused person to the following components cumulatively; to understand the nature of the charge against him, to plead to the charge and exercise the right to challenge it, to understand the nature of the proceedings (i. e. it is an inquiry as to whether or not he committed the offence charged), to follow the course of the proceedings, to understand the substantial effect of any evidence that may be given in support of the prosecution and to make a defence or to answer to the charge, see the prudence of Lukelelwa, J. in the decision of Haji Yusuph Hassan and 3 others v. Republic, HC. Criminal Appeal No; 112 Of 2005, at Mbeya Page 10 of 15 taking inspiration from the Court of Appeal's decision in Mussa Maikunda v. Republic, Criminal Appeal no; 174 of 2006, at Mbeya Registry. The right to fair trial is also emphatically protected by the Constitution of the United Republic of Tanzania, 1977, Cap. 2, R. E 2002 under article 13 {6} (a) in the style of fair hearing. My brother, Mwalusanya, J. (as he then was) also supported this view in Haruna Said V Republic 1991 TLR 124. Again, through his ruling dated 20/8/2008 in Samwel S/O Gitau Saitoti @ Samoo @ Josee And 10 Others v. OPP, HC Misc. Criminal Appl. No; 8 Of 2008 (C/F Rm's Court Moshi Cr. Case No; 12/2007), Mchome, J. (as he then was) taking inspiration from the constitution observed that the right to fair trial is a basic right. Following the circumstances of this matter, I believe that the appellant did not enjoy such a mandatory treatment in criminal justice. The first issue is therefore, determined positively to the effect that the proceedings of the trial court are liable for nullification. I now attend the second issue of Whether or not a retrial should be ordered under the circumstances. The law is now settled that a retrial may be ordered where the trial was unfair to the accused, illegal or , defective; George Mhando V Republic 1983 TLR 118 (HC}, Joseph Maweta V Lekitetyi Karasi 1992 TLR 70 (HC} and the decision of the Court of Appeal of Kenya in Otieno and another v Republic [1990- 1994] 1 EA 510. That will however, depend on many factors such as the time spent in prison by the accused/convict when serving an illegal sentence. It was for this reason that the Court of Appeal of Tanzania was of the view that; whether or not an order for retrial should be made depends on the particular facts and circumstances of each case, a retrial is ordered only when the interests of justice so requires and Page 11 of 15 where it is likely not to cause injustice to the accused; Shabani Madebe v. Republic, Criminal Appeal No; 72 Of 2002, at Dar-Es-Salaam following Ahmed Ali Dharamsi Sumar v. R. [1964] EA. 481 and Fatehali Manji v. The R. [1966] EA. 343. th The appellant in this matter was convicted and sentenced on the 18 day of July 2008, he has now served the undeserved sentence for two years and seven months which is only about 9% of the entire sentence of 30 years; he has not therefore served a substantial part of the sentence. However, 3 years and 3 months have lapsed from 02/11/2007, the date when the appellant allegedly committed the offence according to the charge sheet. This is substantially long period for human life, anything might have therefore, happened to the 7 prosecution witnesses in this matter being human beings who are subjects to various natural and unnatural misfortunes of life, which said adversities may have a negative effect to the evidence in this case for the purposes of justice dispensation. The negative effect I envisage here include; un- availability of the witnesses for any reason, proper memory of the evidence, loss of interest in the case and many others of the like. In addition to those misfortunes, PW. 5 and 7 were recorded as Police Officers in Rufiji District, and it is common knowledge needing no evidential proof that Police Officers are employees of the Police Force subject to transfers, retirements and other phenomena of the like. This long period is therefore, sufficient to affect this case. I believe, I am entitled to presume this situation under s. 122 of the Tanzania Evidence Act, 1967 (Cap. 6, R. E. 2002) in my judicial performance, this being an inference to the existence of facts which I think are likely to have happened, regard being had to the common course of natural events, Page 12 of 15 • I human conduct and public and private business, in their relation to the facts of this case. Again, by simple arithmetic all the 4 girls including the alleged victim of the offence, (which said girls the prosecution considered as key witnesses in the trial, and which said girls were children of tender age nd on the 22 of February 2008 when they testified), are no longer children of tender age for 3 years have lapsed from the date they testified. There will therefore, be no need to conduct the voire dire in case a retrial is ordered. As to whether or not the quality of the evidence that will be adduced by the 4 girls in the retrial (in case it will be ordered, and when they will no longer be children of tender age) will remain the same as it was when they were children of tender age (when during the trial when voire dire was mandatory) is matter which this court cannot predict. My settled views are that, it is the prosecution side which may be in the better position to know whether or not a retrial will be effective if ordered, but the learned State Attorney did not tell this court in her arguments that she had made a sufficient inquiry and the results have been positive that a retrial if ordered will be effective. Her reason for asking a retrial were only based on the unfair trial, she did not appear to have focused· on the possibility of conducting such the proposed retrial following the negating factors I have just presumed herein above. I am trying to imagine, what will happen if I order a retrial and the negative factors presumed herein above become real, the effect of that order will be to bother the appellant for nothing by ordering a retrial which will not be effective. Page 13 of 15 . , Under the circumstance I refrain from making any order for retrial for the uncertainty of the implementation of the order I will make. Court orders should not be made where it is uncertain that they will be executed. I must emphasis here that each court order has a purpose to serve in the process of dispensation of justice. There will thus be no meaning to make an order the implementation of which is uncertain as it is in the matter at hand. Following the circumstances of this case I leave it for the Director of Public Prosecution (OPP), to exercise his discretion and decide whether or not to institute a fresh charge against the appellant upon an inquiry which will indicate that the case against the appellant will still be tenable despite the lapse of time and the presumptions demonstrated herein above. As to this approach of leaving the matter at the OPP's hands I am backed b_y the envisaged position of the law by the Court of Appeal which, upon nullifying the proceedings before it, and following the nature of the matter before it, it also left it for the OPP to decide whether or not to institute a fresh charge against the appellant, see Thobias Elias and 2 others v. Republic, Criminal Appeal No; 34 Of 1993, at Arusha. It is for these reasons that the second issue is negatively determined. Having observed as above, I find myself not obliged to test the merits of the appeal for, the findings I have made above following the arguments raised by the learned State Attorney are capable of disposing this appeal. For the above reasons, I hereby nullify and quash the proceedings of the trial court, and I set aside the judgement, orders and the sentence passed against the appellant. The Appellant be therefore, released from the prison unless he is held for any other lawful course. As directed Page 14 of 15 above, the OPP is at liberty to file a fresh charge against him if he finds it proper for the sake of justice. It is so ordered. JHK. UTAMWA JUDGE Date 03/03/2011 Date; 03/03/2011 Coram: Hon. Utamwa, J. For the Appellant: Present in person. For the Respondent: MS. Chimpaye, State Attorney. CC: Ms; Fortli'nata; l \ , ) 1 l \\ ·~· ;·1 ' . Court:' Judgement delivered in open court in the presence of the parties '--. rd this 3 day of March, 2011. JHK. UTAMWA Judge 03/03/2011 Page 15 of 15