20120509 TZCA Arusha

1 ' 0 IN THE COURT OF APP.EAL OF TANZANIA . ATARUSHA (CORAM: 'NSEKELA, J.A., LUANDA, J.A., ·MASSATI, l.A.) CRIMINAL APPEAL. NO. 59 OF 201'0 IJ UMAA -~RA MAD HA:N I ••••••....•...•.....•.........•....•••••••••••••••••••••••••••••••••APPELLA'NT VERSUS THE DPP ................................................................... ~ ........ ........:RESPO.NDENT (Appeal from the conviction of the High Court of Tanzania at Arusha) ·(Mmilla, J.) dated the 2 nd day of October, 2009 in HC. Criminal Session Case '.No. 51 of 2002 JUDGMENT OF THE ,COURT 7 & 18 May, 2012 MASSATI, J.A.: - . The appellant was charged with and con~icted of the murder of one AHMED ALLY by the High Court at Arusha (Mmilla, J.). He pleaded not guilty. It was alleged at the trial court that the appellant murdered the said AHMED ALLY, on the 19th day of November, 2001, at Maisaka .area, Babati 2 , District, then Arusha .(now Manyara) Region. These allegations were then substantiated by prosecution witnesses PWl (TABU HUSSEIN) PW2 (JUMA . SELEMAN) and PW3 (No. C3076 . D/Cpl Godfrey). The. prosecution also produced as exhibits; the post-mortem examination report (Exhibit Pl) the appellant's extra judicial statement (Exhibit P2) and the sketch map (Exhibit P3). , The sum total of the prosecution case was that on the material day, at around 6.30 pm (18.30 hrs) the appellant and his friend (who was not . charged) together with the deceased visited PW1 's kiosk ·to buy some cigarettes. PW2 was playing at the compound, nearby and saw them . After paying for their merchandise, and while PW1 was looking for small change, the trio began to exchange words, as tempers flared up. It .. appears that the source was a demand for a knife by the appellant from· the deceased. This scuffle led to the stabbing of the deceased, who was left lying down, while the appellant and his other friend fled from the scene. PW1 reported to the authorities who arranged for the collection of · the deceased's body, and its post-mortem examination. The appellant and - . ·•··· ..... - 3 his friend were· finally -arrested and charged. According t<? the proceedings in the preliminary hearing the appellant gave an extra judicial statement confessing to the killing, -and as it was not -objected to, the same was -admitted as Exhibit P2. The post-mortem examination report and the _sketch-map were also admitted without objection at that stage, and marked Exhibits Pl and P3 respective·ly. It was on the basis of this _- evidence that the appellant was convicted and- sentenced to death. -In this Court,the appellant was-represented by Mrs. Christina Kimale, _· learned counsel. The-Republic/respondent was represented by Ms Javelin Rugaihuruza, learned Senior State Attorney. The appellant had, earlier on filed a memorandum of appeal containing 16 grounds. On receiving the dock brief, Mrs. Kimale filed a separate memorandum of appeal containing two grounds. At the hearing of the appeal, Mrs. Kimale adopted only ground two out of the 16 grounds filed by the appellant and abandoned ground one of 4 , her own memorandum, and remained with one. Thus, she :argued only two grounds of appeal namely:_- (1) That the records does not (sic) suggest that the memorandum of undisputed facts was read explained (sic) to the Appellant and in the language he understood as provided under Section 192(3) -of the Criminal Procedure Act {CPA}, 1985, nor the records suggest the language in which it could have been done; such that Section 192(3) of the CPA 1985 was not complied. The provision ofSection 192(3) is mandatory and non compliance .with the _same is fatal and render the whole trial a nullity. (2) That the Honourable trial Judge erred in law by convicting the -appellant for murder while prosecution did not prove the charge to the standard required. In arguing the first ground Mrs. Kimale submitted that, as there was no indication in the record whether the Memorandum of Undisputed Matters was read over to the appellant before he was called upon to sign, 1· .s and since Section 192(3) of the CPA was mandatory, non compliance 'Was ·fatal and the matters shown as undisputed cannot be d~emed proved in terms of Section 192(4) of the CPA. Referring to the decision of this.Court in :E·FRAHI·M 0LUTA'MBI v R (2000) TLR 265, counsel urged us to fault . and nullify all the proceedings of the preliminary hearing. On the second ground, the learned counsel argued that, once the memorandum of matters not in dispute are discarded the remaining evidence on record was insufficient to ground a conviction. She referred to the contradictiGns and- -inconsistencies in the testimonies of PW1 and PW2 on whether it was the appellant who stabbed the deceased to death .. She also criticised the trial court's finding of the defence case as an afterthought, as wholly unjustified. In her view therefore, without the extra judicial statement (that was admitted as evidence during the preliminary hearing) the remaining evidence was insufficient. She therefore prayed that the appeal be allowed. 6 ·. . . . . .. . . . . . ·. . On her part, :Ms Rugaihuruza, declined to support .the conviction and . sentence. In her view, the non compliance with Section 19.2(3) of the CPA was fatal and had the effect of disapplying the provisions of Section 192(4) thereof. Which means -that, all the exhibits received by the trial court under the cover of that ·section cannot be deemed to have been proved, and must be expunged from the record. With regard to the remaining evidence, the learned counsel, a_greed with the appellant's counsel that it was insufficient to ground a conviction. She wondered for instance, if PWl and PW2 were both at the scene of · crime why didn't PWl witness the stabbing as she was nearer to where the incident took place; and instead, PW2, who was· some 15 paces away, could see it. As to the conduct of the appellant, in running away soon after the deceased had fallen down, she retorted that, even that was not conclusive. In the premises, she urg_ed us to allow the appeal. This appeal has given us some considerable anxiety in our minds; not on what the law is, but what the effects are. As of now the law is settled 7 that ·failure to comply with Section 192(3) of the CPA is fatal to the proceedings leading to the expulsion of all matters deemed .proved in terms of Section 192(4). This was laid down in -MT 7479 SGT 'BENJAMIN HOLELA v :R (1992) TLR 121; where, like in the present case,· after recording the matter not in dispute, it was read over, but it was his - advocate not the accused himself who admitted. It was emphasized there_ that it must be the accused himself, and not his counsel who must answer. This would be so, even if an accused person signs the memorandum. (See L. HUBERT v R Criminal Appeal to 28 of 1999, EFRAIM LUTA'MBI v _ :R_ (2000) TLR 265, and ENOCK -KI PELA v R Criminal Appeal to 150 of 1994 (all unreported). But the next question is, what next? At first, both counsel, before us, had suggested to us, that non compliance of Section 192(3) of the CPA, affected the whole trial. Later, they narrowed down to the fact that it affected only the proceedings of the preliminary hearing. The latter view is supported by cases like HOLELA's. But there are also cases, in which this Court has taken a broader view. For instance, in JUMA MRISHO v -R 8 Criminal Appeal No. 57 of 1993 ·. ( unreported) where a··preliminary hearing was not conducted at.all. This Court said: "The question for consideration is had the non compliance caused a failure ofjustice. We see no .such failure of justice and certainly this omission has not in any way prejudiced the appellant in the conduct of his defence. " In 1BAHATI !MASEBU v R Criminal Appeal No. 135 of 1991 (unreported) where the Court also considered the effects of .non compliance With Rules 4 and 6 of GN 192 of 1988 (the same as in the present case) it observed: "We · wish · to point out to Judges and Magistrates below that there may be cases in which such non-compliance may result into quashing conviction on app~al. " In our view, the two positions are completely reconcilable because they all emanate from the principle behind the enactment of Section. 388 of tbe CPA. Stated simply, all that Section 388 of the CPA provides, is that an infringement in criminal procedure is not necessarily an incurable 9 ·irregularity unless the irregularity has prejudiced a party and . therefore occasioned a "failure ·-of. justice" (See 'MICHAEL -LUHIYO ·v 'R (1954) TLR 181. But what is "faUure -of justice?". In considering whether there is failure of justice under Section 388 of the CPA, we think, it is wrong, by the very wording of that section, to . assume that that can only happen to an accused person. . Indeed in :MARKO P. NZUMILA & ANOTHER v R Criminal Appeal No. 141 of 2010 ·(unreported) it was held that in deciding whether a failure of justice has . been oGcasioned, the interests of both sides of the scale of justice have to be considered. This followed DPP v OWDEN KASANJA AND 9 OTHERS Criminal Appeal No. 305 of 2009 and MBWANA HASSAN! v R Criminal Appeal No. 98 of 2009 (both unreported). That statement traces its origin from the judgment of Lord Scarman in R v SANG (1979), 2 All E.R. 1222 that: Fairness of the proceedings involves a consideration not only of fairness to the accused but also/ as has been said before/ fairness to the public. // 10 From the :above ·we take the view that in considering the effect of infringing any rule of procedure the interests of both the accused person, and the prosecution have to be considered. So, where .by- some non compliance with a rule of procedure, an accused person is denied the opportunity of an acquittal, there .is a failure of justice (See -WIL'LlBA'LD 'KIMANGA'RO 'Y iR Criminal Appeal No. 235 of 2007 (unreported). Equally, if such non compliance is not caused by the prosecution and it is denied the opportunity of a conviction, there is a failure of justice. This is because, as observed in R v SA'NG conviction of the guilty is as much a public interest, as is the acqaittal-of the innocent; because in a just society all are needed. With the above principles in mind, we now turn to the present case. We have studied all the proceedings closely. It is com·mon ground in this appeal that the conviction of the appellant rested partly ori the evidence derived from the matters held to be undisputed in the preliminary hearing, and partly on the testimony of PWl 11 · and PW2. Under the prevailing law, the memorandum of ·matters not in dispute has to· be discounted. because the trial court did not comply with .the provisions of Section 192(3) of the CPA.· That part ·of the proceedings had to be nullified as a result of a mistake of the trial court, and not by fault of the prosecution. In our view this mistake of the court, has occasioned a failure of justice, because the conviction has to be set aside. In such situations, the most frequently resorted to remedy is to order a retrial. We are, of course; aware of the general principles upon which a retrial should be ordered as restated in FATEHALI MANJI v '.R (1966) E.A. 343; that: "In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence, or for the purpose of enabling the prosecution to fill up gaps- in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not 12 necessarily follow ·that a retrial should be ordered; each case must depend on its own facts and circumstances and an order of retrial should .only be made where the interests of justice require it'~ From the above principles what is to be underscored is that each case must depend on its own facts, and that the prevailing test is the interests of justice. Thus, in MKANALE v REPUBLIC (1973), 1 E.A. 67, the trial court committed a number of irregularities in admitting a . confession and the evidence of children, among others. The erstwhile East African Court of Appeal applied the principles in :MA'Nll's-case (supra) and held that it was proper to order a retrial so long as it was not sought to fill up gaps in the prosecution evidence, and the defects in the trial court were in no way, the fault of the prosecution and the interests of justice so required. In the present. case, as observed above, the prosecution was not to blame for the omission by the court· be read the memorandum of . 13 undisputed matters back to the appellant. Nor would the prosecution fill in any gaps in the prosecution case, ·because in such cases the prosecution ·is guided by depositions. We have also considered the fact that a human life has been wasted ' . ~ .. and that the appellant has been in custody for about eleven years, and that he is in his mid thirties. We do riot therefore think that the appellant would be prejudiced by an order of a retrial. For all the above. reasons, we allow the appeal ·and set aside tt-le conviction and sentence, and order that the appellant be retried with all convenient speed. Order accordingly .. DATED at ARUSHA this 9th day of May, 2012. 14 H. R. NSEKELA JUSTICE OF AP-P·E-AL B. M. LUANDA. JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL .