20120302 TZCA Mwanza

·, .- •; .. > J -·· . -..... •••OM • - : ' I i I INjTHE COURT OF #\PPEAL OF TANZANIA I I ATMWANZA I I ' • {CORAM: !MSOFFE, J.A., BWANA, J.A And MJASIRI J.A.) I I CRIMINAL APPEAL NO. 179 OF 2007 i ; 1. HABIYALIMANA AUGUSTINO ~ . · 2. MIBURO ABDULKA RIM @ NEPO 1 ................................... APPELLANTS i . I I vElsus THE: REPUBLIC ......•.1••.•.....•••.•..••..••..•• ]••.•.........•.....•••••••....•••..• RESPONDENT : i . {Appeal frQm the decision df the High Court of Tanzania atBukoba) ! {Luailda, l.) t · dated the 31 st day of May, 2007 l · 1 l I'" Criminal Sessions Case No. 34 of 2002 l ]. ] ·······!~········ JUDGEMENT bF THE COURT 2 & 2 March, 2012 BWANAJ.A.: ; The two appellants were char ,ed with and convicted of the offence . : . ! of murder contrary t~ section 196 of the Penal Code, Cap 16. Aggrieved by , . I I itI the decision of the High Court, they 1:i'referred this appeal. i It was alleged :before the High Court that on or about the· 8th day of I ! May, 1999 at Ngar~, the appellan jointly and together murdered one Adela Shirima: It 1b on record thit the two appelrants were hired to i commit the murder.. 1 And so was the weapon used, an SMG. It was hired as well. The deceased was running a grocery within Ngara township. On the fateful day, she closed her shop at about 10.00 pm. While leaving her business premises she was shot dead. According to Emmanuel Shirima, PWl, son of the deceased and Nibogoro John, PW7, a watchman, the assailants were two. PW1 described them as one was tall and wearing a long coat. The other was short. The former had a gun and a torch. He approached the deceased, shone the torch to her and then a sound of gun shot was heard. That was followed by another shot and the deceased cried "Yesu wangu." However, another watchman guarding the business premises, that is, William Wilson, PW8, had seen the assailants prior to the killing of the deceased. They emerged from a trench. The shorter assailant held PW8's neck while the taller one rushed to where the deceased was and shot her. Therefore all the three key witness at the scene of crime managed to describe in the same manner, the assailants. 2 ,i Upon hearing/ the gun sho , the police at Ngara organised I. lr . . themselves and the/ news of the killing was communicated to other police stations within Nga~a District. Th) deceased was the wife of the officer I Commanding Distrief (the OCD) of Ngara. . At the scene of. crime, twr spent cartridges were recovered. Together with the S:MG !. allegedly used , in the killing the catridges were later sent to the Identifi~tion Bureau ( ithe IB) for further investigation. The SMG used in the ~illing had beenl recovered following PC Rweyendera, PW4,· .and other p61icemen appreh~nsion of the appellants the following ! morning as the twcb were about to cross the Ruvuvu river. It is on record I ttiat the two people,! the appellants now, when they saw the police vehicle, ~ .. they retreated into /the nearby bush. The police suspected them and made- . . . i. I. ' a follow up. They fTlanaged to arrist the appellants. The two are said to have confessed to ~he killing and a~ked the police not to kill them. Nearby I ) ' :1 to wh~re the -two ~ere , hiding therelI was the material SMG, with. a magazine and a number ofi bullets. These' were subsequently sent to the IB. Inspector Amar, Pi9, a ballistics ekpert who conducted the examination of · 1 I II . . ' 3 the SMG and the spent cartridges, came to the conclusion that the two spent cartridges were fired from the same SMG, Exhibit P.13. The first appellant gave a cautioned statement in which he admitted to have committed the offence. Likewise, both appellants wrote their extra- judicial statements before a Justice of the Peace, one Ruhasha Mwemezi, PW 10. A trial within trial conducted by the trial judge concluded that the said statements were voluntarily given. In their defences before the trial court the appellants denied to have committed the offence and raised the defence of alibi. The trial judge considered that defence and pursuant to the provisions of section 194 (6) of ·the Criminal Procedure Act (the CPA) he took cognizance of it but proceeded to hold that in view of the strong prosecution evidence, he accorded no weight to that defence of alibi. In the final analysis, the appellants were convicted of the offence of murder. - They were sentenced to suffer the mandatory sentence of death by hanging, hence this appeal. 4 Before us, the appellants were represented by Mr. Anthony Nasimire, .. _.-- I . ·•. - . lea.med counsel, while Mr. Pius Hilla j: ppeared for the respondent Republic. Mr. Nasimire raised ·?ne main ground.of appeal namely- r I . That · tJre is no suffia:ient evidence on record ol the basis of wf ch the appellants' convictiJn could safely be grounded. I .- i I To support h'.is views Mr. Nasimire submitted before us on the I l' cautioned statemen~; the extra-judidal statements; and the circumstances of the arrest of th~ appellants and t.he recovery of the SMG together with the magazine. i ! In so far as; the - cautioned , statement is concerned since it was -I - - · repudiated, it was Mr. Nasimire's swbmission that it should be discarded all together, particutJly so since thJ said statement was made after (not I - . . j, - before) the recov~ry of the SMG and magazine. He also averred that the said statement, El . P9, shows thlt it was recorded on the 9th May 1999 : . · . starting at 14.15 ~ours but does nbt show when the recording terminated, ·thus contravening the provisions 1r section 57 (2) of the CPA. The said S. ! ' 5 ' I i ' i I I I 57 (2) is a mandatory provision. He further submitted that since the maker, the second appellant, repudiated it, there was need for corroboration. In so far as the extra-judicial statements are concerned, it was Mr. Nasimire's submission that since the said statements were not read at the Preliminary Inquiry stage and the recorder, PW10, was not listed as one of the would be prosecution witnesses, they be discarded. He cited the case of Hamisi Meure v Republic (1993) TLR 213 (CA) in support of his averment. Furthermore, since both extra-judicial statements had been repudiated, they needed corroboration, something which was not there.· Therefore the trial judge should have not relied upon them, he asserted. Likewise, Mr. Nasimire attacked the ballistic expert report and noted the fact that the said expert, PW9, did not disclose his qualifications. As regards the circumstantial evidence, Mr. Nasimire raised questions on the arrest of the appellants and how the SMG and magazine were recovered from the bush. On his part, Mr. Pius Hilla, submitted that the prosecution case was proved to the required standard, that is, beyond reasonable doubt. 6 I I. Concerning the cautioned statement,, it was Mr. Hilla's submission that the provisions of sectio~ 57 (2) (e) of Jhe CPA were complied with. If at all . , - l - there are errors to ~he procedure fi"owed, then they are not fatal to the . case. He further :urged us to hf'd that in the event the cautioned statement and extra-judicial statements are expunged, there is still other strong E!vidence imRlicating the app~liants with the offence. . I I It is settled 1aw that repudia~ed statements need corroboration and : I according to Mr. Hilla, such corrobrration does exist, taking into account the evidence on record. : Concerning the number or kijd of witnesses that ought to have been called by the pros~cution, Mr. Hill; relied on the provisions of section 143 - : r of the Evidence Act and that, it is i~ the discretion of the prosecution to call i witnesses that should testify. He also let the Court know that the trial i judge was better placed to establish the demeanour and credibility of the ) ' witnesses before him. ! i . The outcome of this case hinges on the following sequence of events. ) 7 1. That PWl, PW7 and PW8 witnessed the killing of the deceased by gun shots. Two people, one tall and one short, attacked the deceased as she was leaving her business premises. The attackers had a gun and used a torch to identify their victim. Two gun shots were fired. 2. That two spent cartridges were recovered from the scene of crime. Later on, an SMG was recovered. Upon expert tests the said catridges are said to have been fired from the said SMG. 3. Earlier, the police had seen two people who behaved suspiciously, trying to cross Ruvuvu river. Tracing their whereabouts, the police managed to apprehend the two persons who are now the appellants. The material SMG was near the place where the two were hiding. 4. Upon further interrogation, the appellants admitted to have committed the offence and disclosed to the police the motive for the killing and where the magazine was hidden. The parties hereto addressed us on the issue of repudiation of the cautioned statement as well as the extra judicial statements. It is settled 8 ·I, .. law that in order to riely on the evidence obtained from either a cautioned or extra jl.ldicial ·statement, the said btement must have bE?en freely and voluntarily given. it la~, thus rightl1:observed by this Court in the case of Twaha. Ali and fiJ others v Repfblic Criminal Appeal No. 78 of 2004 t (unreported), while, citing FIELD' ~W OF EVIDENCE, 10th Edition at P. ·, I. 1587 thus- I r •~ .. no cdntession is receivable if its source be not ! t ''omni stspicione mojusf above and free from the remoteJ taint of suspici0n. " ) I . I ·I The Court then wjt on to state tha! confession must be- I '. • . I 1 1:- • ''free /from the blemishes of compulsion, indutetnent, threat, · promises or even self I ; . J halluci~ations. " I There seems to hdve been some G>bjections as to the voluntary nature ·of the said statementk. We however lo note that after a trial within trial, the judge came to th~ conclusion thaJ;the said statements were freely given.· Be that as it may( the law on reiudiated and or retracted statements is well settled. A ~pudiated · statJlnent is one which the alleged maker I 9 I I I I I denies to have made it at all. A retracted statement, on the other hand, is one which the maker admits to have made it but which he says he made it while under pressure, threats, or undue influence. In other words, it is a - statement made while the maker is not free. Where both statements are to be used as a rule of practice, corroboration is required (See for example: Ali Salehe Msutu v Republic (1980) TLR 1; Mboje Mawe and others v the Republic Cri~inal Appeal No 86 of 2010 (unreported) .. Assuming that we were to differ with the trial judge on this aspect, the immediate question would be whether there was corroboration. We have examined the record and came to the conclusion that truly there is independent evidence which supports the statements .. For example, where the appellants were apprehended; where the SMG and magazine were recovered; the two spent cartridges recovered from the scene of crime and the ballistic expert report that those cartridges were fired from the very SMG that the appellants were found in possession of. And the like. Therefore even if the said statements may be expunged from the record, there would still be sufficient evidence in support of the prosecution case. 10 -- .. - ... . ,··· I ' : i ' .. I . 't I I The other .issue ra,s~d in connection with the extra J'udicial statements was I ! . . I . ,, whether the statement recorded by the Justice of Peace who had not been .listed as a witness could be used .. hection 289 (1) of the CPA was a point in mind. That Section provides:- ' I ' i, "S. 289 (1) i Nb witness whose statement or substance of evibence was Aot read at committal pr~ceedings shall d,e called by the prosecution . at / the trial unle~ the prosecution has giJen a reasonable notice in writing to I I. .' the accused per1,;,n or his advocate of the inlention to call suJh witness'~ I r . (Emphasis provide_d.) As it transpired i~ court, such a · notice was given by the prosecution. II Therefore such an1argumer:it could not stand. As to the expertise of PW9, I I .· the issue had not /been raised in tne courts below therefore we cannot put . weight on it at t~is stage. Furtler to the foregoing, we note from the record that PW9 Jid give his backlround as an expert and that he was not challenged on thl by the defenst side. Therefore we have no reason to I doubt his exp~rti~e. I I 11 I I I I I Regarding the circumstances under which the appellants were · arrested and or the SMG and magazine were recovered, we see no fault in the trial judge's findings and there was no illegality occasioning prejudice on the part of the appellants. Again, regarding the failure on the part_ of the prosecution to call people considered as likely witnesses, the law is settled, as provided under Section 143 of the Evidence Act that:- ''Subject to the provisions ofany other written law, no particular number of witnesses shall in any case be required for the proof of any fact. " In so far as the defence of "alibi." is concerned, the trial judge did address his mind to the issues and decided to accord no weight to it in view of the strong prosecution evidence. He relied on the case of Mwita Mhene and Another v Republic, Criminal Appeal No. 65 of 2002 CAT (unreported). We see no reason to disagree with the judge. All the above considered, we find no fault in the decision of the trial judge. Therefore this appeal is dismissed in its entirety. 12 :_<. r:·.J-•>:. _ :"·-· · _ ._, .- . _,, •._, >- J ... -· . . ·•. . ,~: I. I I . ' !. DATED at MWANZA this 2nd day of March, 2Q12. ]. H. MSOFFE JUSTICE dF APPEAL i r J. S. BWANA . f JUSTICE.Of APPEAL lI \ i· S. MJASIRI JUSTICE. OF APPEAL I certify that this is a tue copy f the original.· !. . .]. s$g!tta-t_ ., r I • DEPUTY REGISTRAR: . i COURT bf APPEAL I.· I (· i I 1- , : ! .-,._ . i ,I ' i i ' .. ',: ~ ! l' I. I I , • I ( 1· r , 1 I 13 I· ' I . I l. ' i: ,1' I