20120521 TZCA Tabora

I IN THE COURT OF APPEAL OF TANZ~NIA AT TABORA (CORAM: MUNUO, J.A., KIMARO J.A., And MJASIRI, J.A.} I CRIMINAL APPEAL NO 322 & 323 OF 2009 1. SAID S/O MASOLWA@ BUNGA} , 2. MASALU S/O MISALABA ......................,..............APPELLANTS VERSUS I THE- REPUBLIC .............................,...........................•............ RESPON DEN1T I (Appeal from the judgment of the High Court of Tanzania at Tabora) ' (Mujulizi, J.} dated 2 nd October, 2009 in Criminal Session Case No. 15 of 2003 ................... JUDGMENT OF THE COURT I 17 & 23 May, 2012 MJASIRI, J.A: I The appellants Said Masolwa and Masalu Misalab~ were convicted of murder contrary to section 196 of the Penal Code Cap 16 R. E. 2002 by the High Court at Tabora and were both sentenced to suffer death by hanging. It was alleged by the prosecution that on the 3rd day of February, 2003 at I Lyabukande Village within the District and Region 'of Shinyanga the I 1 I appellants murdered one Deus Masolwa. Aggrieved by that decision, the 1 1 I appellants have appealed to this Court. I I The background to this case is that the firs~ appellant was the ' I deceased's half brother. It was alleged that their relationship was not good I i which led the first appellant to hire an assassin to kill: his brother. Prior to I his death there was another attempt on the decease~'s life, and the first I I appellant was implicated. Initially two other people were charged with the I ' I two appellants, one of them being the deceased's oth~r young brother but I I the two of them were discharged after a nolle prosequi was entered by the I I Republic. i I At the hearing of the appeal the appellants had the services of Mr.1 1 i Kamaliza Kayaga, learned Advocate and the respon1dent Republic was I ! represented by Mr. Hashim Ngole learned Senior State ~ttorney assisted by Juma Masanja, learned State Attorney. 2 Four grounds of appeal were presented in Coprt on behalf of the appellants which are reproduced as under:- nd 1. That the evidence of PW .3 E. 9752 D/SGT Juma relating to the 2 respondent Masalu Misalaba's cautioned statement (Exh P.2) was I wrongly received in court and that the trial· within a trial was improperly conducted. 2. That the 2nd respondent's cautioned stateme~t (Ext P. 2) was wrongly acted upon to ground the conviction of t~e appellants. I st 3. That the evidence of the 1 appellant was not carefully considered by the trial Judge. 4. That the appellants were wrongly convicted on shaky grounds. I In relation to grounds No. 1 and 2, Mr. Kayaga strongly argued that I Exhibit P2 was wrongly admitted and relied upon I by the court. He submitted that the procedure was not followed. PW3, the Police officer who recorded the statement of the 2nd appellant, nar~ated in court what was stated in Exhibit P2 before the said document was admitted in court as an exhibit. This was done in the presence of the as~essors. He further 3 I argued that even though no objection was raise~ by the appellant's I counsel, the appellants were prejudiced. The assessbrs were informed of the contents of Exhibit P2 before the same was admit:Fed. The admission of I the said Exhibit was objected to by the defence courlsel on the ground of I I involuntariness. He stated that the trial Judge wrbngly ruled that the I I statement was admissible. He made reference to the case of Francis I I Mashara Makewa v Republic, Criminal Appeal ~o. 215 of 2007 CA (unreported). I Mr. Masanja conceded that the procedure was nott followed. However, i i he was of the view that the appellant was not prejudiced in any way relying on the case of J,.utamla Basu @ Ivinzi v \Republic, Criminal Appeal No. 128 of 2008 CA (unreported). I i With regard to grounds No. 3 and 4, Mr. Kayaga su8mitted that the trial I I Judge failed to take into consideration the defence of t~e 1st appellant. The I first appellant raised the defence of alibi, which was di~missed without any justification. 4 I I He further stated that the evidence on record was not sufficient to i convict the appellants of the offence of murder. The only evidence against I I the appellants was the confession of the 2nd appellant. As the same was I ! I nd retracted by the 2 appellant there was need for corroboration. As far as I ! the first appellant was concerned the evidence was that of a co-accused which needs corroboration. Mr. Masanja submitted that the 1st appellant's defence of alibi was I I properly considered by the trial judge, and the same was rejected for lack I I of merit. I nd In relation to the confession made by 2 app~llant, Mr. Masanja I I submitted that as the said confession implicated the maker, that is the 2nd I I I appellant, the evidence could be used against the first appellant. , I I According to Mr. Masanja the test was truthfulness. He submitted that the 1 I judge properly relied on the statementi as he consider~d the statement to I be true. The confession contained such details that it could not be anything but true. He contended that the accoun~ given by the 1st I appellant in the confession was corroborated by the post-mortem report on I I 5 I the cause of death and the weapon used. The same was also corroborated by the evidence of PW2, the deceased's widow on the state the deceased's body was found. After carefully reviewing the evidence on record ano closely considering the rival submissions by Counsel we would like to 1make the following observations. The main issue for consideration is whether or not the evidence on record was sufficient to base the conviction of the appellants. In relation to the first appellant, the only evidence implicating him is the caution statement of the 2nd appellant. There is no other evidence linking him with the death of the deceased. Does that I evidence suffice to st convict the 1 appellant of the offence of murder?. 1he evidence of the appellant is that of an accomplice which as a matter qf practice requires corroboration. I In Anyuma s/o Omolo and Another 1953 20 EACA 218. It was held I as follows:- 6 •~ confession by an accused involving i his co- accused when unsupported by other testimony, is evidence of the weakest kind against kuch co- ' accused. It is accomplice evidence I needing corroboration" See Anyangu and others v R 1968 EA 239 at 240~. i I It is on record that the 1st appellant's defence of alibi was rejected by I the Court. However in a criminal case the burden of proof is always on the i prosecution to prove the case against the accused person beyond I i reasonable doubt. The burden never shifts. I In Ali Amsi V. Republic Criminal Appeal No. 117 CA (unreported) it ! was stated thus: i ''It is of course not the law that once th8i alibi is proved to be false/ or is not found to have raised doubt the task of proving the accused Persons I guilt is accomplished. There must still be ,credible and convincing prosecution evidence/ on Vts own merit to bring home the alleged offence." 7 I st PW2 in his testimony stated that he met the 1 appellant who was his uncle near the crime scene but did not state that he was one of the assailants. PWl, the deceased's widow, testified that the deceased and the 1st I appellant did not have a good relationship. She even mentioned in her testimony that the 1st appellant was implicated when the deceased was 1 previously attacked. However this factor does not prove in any way that 1 the 1st appellant committed the offence. i nd With regard to the 2 appellant, the circumstances are different. He gave a detailed account of what transpired in his cautio'n statement. What was stated by him tallied with the post - mortem repqrt, on the cause of death. The state of the deceased's body as narrated by him, the crushed skull and the eyes out of the socket was the exact d~scription given by PW1. Such details could only have been recounted by someone who was 1 directly involved. 8 I However we need to address the procedural irrebularity raised by the I I I counsel for the appellant in respect of the testimony of PW3, who recorded . I nd the 2 appellant's caution statement. Did the irregularity prejudice in any I way the 2nd appellant so as to result in. miscarriage of jµstice? I i We have carefully reviewed the circumstances clnd sought guidance I from the decisions of this court and from other jurisdictions which are of I , I persuasive value. We must remark in passing that ~he said irregularity could have been avoided by intervention from the def~nce counsel and/or : ! I the court. In the case of Ramadhani Salum v Republic, !criminal Appeal No. 5 of 2004 CA (unreported), a trial within a trial wa~ conducted in the I i presence of the assessors, thereby exposing the asses$ors to the contents i of the caution statement made by the accused person before the said . I statement was considered admissible and admitted as ah exhibit. 9 It was held by the court that the 1ppellant was not prejudiced and no jl I miscarriage of justice occurred as the ~tatement in qu~stion was admitted i I in court as evidence. i I: II I I However this is not the establish~d practice. The assessors were not supposed to hear the evidence before ii was adjudged ~dmissible. This can only happen after a trial within a trial \has been condJcted. It was highly irregular for PW3 to narrate in the pre!ence of the asslssors the contents of Exhibit P2, the caution statemenJ of the 2nd aplpellant before the i i admissibility of the said piece of eviddnce was determined. If the court had decided that Exhibit P2 is in-admislible then the aslessors would have I, '1 ' \ heard prejudicial, in-admissible evidencl I , 1 A trial within a trial is conduct~d to establish lhether or not the : I . confession was voluntary. I In Kinyori Karadutu v Reginam (1,956) 23 EACA 480, it was stated I thus:- 10 "When the stage is reached at which the issue must be tried, the defence should mentioJ to the court that a point of law arises and subiit that the assessors be asked to retire. It is important I that, that should be done before any witness is I allowed to testify in any respect which might 1 suggest to the assessors that the accused had made the extrajudicial statement". I I In taking in consideration the circumstances of this ca~e I and the fact that the 2nd appellant was not prejudiced in any way, we ar~ of the considered view that there was no miscarriage of justice. Th~ circumstances in Francis Mashara Makewa ( supra) are distinguishable from this case. We now need to determine whether or not the 2nd appellant's caution statement can be relied upon to ground a conviction givfn the fact that the appellant retracted his caution statement. I In Bombo Tomola v. Republic 1980 TLR 254 it was s~ated as follow:- 1 "We are fully aware that generally, I it is dangerous to act upon a r,epudiated or retracted I confession unless it was corroborated in rriaterial 11 particulars or unless the court atre~ full consideration of the circumstances is satisfied of its truth'~ i We are inclined to agree with the trial judge 1that the caution statement of the 2nd appellant was fully corroborated by: the post mortem report and the evidence of PW1. Like the trial judge we are fully satisfied I that the confession cannot be but true~ given the fine details contained ! therein. See Hatibu Gandhi and others V 1996 TLR 12 (CA). Given the prevailing circumstances, we are of th : considered view that it has been proved beyond reasonable doubt that the 2nd appellant murdered the deceased. We therefore dismiss his appeal In relation to the 1st appellant we hereby quash t/he conviction and set aside the sentence: The 1st appellant should be ~et free forthwith I unless otherwise lawfully held. 12 l • ' .) i DATED at TABORA this 21 st day of May 2012. E.N.MUNUO JUSTICE OF APPEAL. N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL. l certify that this is a true copy of the original. (Z.A.~) DEPUTY REGISTRAR COURT OF APPEAL 13