20120307 TZCA Mwanza

-· ·I_N THE COURT OF APPEAL OF TANZANIA ATMWANZA . (CORAM: BWANA. J.A•• MASSATI. J.A •• And MUSSA. J.A.) . . ' CRIMINAL APPEAL NO. 211 OF 2010 '. 1. DEOGRATIAS NICHOLAUS @ JESHI } - 2. JOSEPH MUKWANO .•........................ APPELLANTS VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Mjemma. J.) dated the 15th day of July, 2010 in Criminal Sessions No. 113 of 2004 JUDGMENT OF THE COURT 5 & 8 March 2013 MASSATI, l.A.: The appellants who appeared as the 1st and 2nd accused ,;~ persons in the trial court respectively were convicted of the murder of one ISRAEL s/o KATOKE and sentenced to death. It was alleged there that they murdered the person on the 11th day of August, 2003 - at Lukajange/Koshae village in Karagwe district, Kagera Region. ..... ·: At the trial, it was established that, except for the second appellant who was a house boy, and one Audax who was a farm .attendant the late Professor Israel Katoke was living alone in his house at the material time. But, it was also established that the first appellant was also working there before. On the fateful night Catherine Martine (PW1) who was a neighbour visited the house. She met the deceased and left him alive when she left the house an hour later. Next morning, PW1, ·heard a dru·m beating to sound an alarm. The villagers assembled and entered the house, only to learn that the Professor was dead. The report of his death was made to Kayanga police station and later his body was taken to Nyakahanga Hospital, and when a post-mortem examination of his body was conducted it was found that the deceased died from strangulation. It was also found that his body had a piece of cloth (scuff) around his neck. C. 1555 EX-D/SGGT Abel (PW3) was assigned to investigate the case. So, he and his team, first went to the deceased's house. The villagers had already arrested the deceased's domestic employees, namely the second appellant (Josephat) and Audax, who also 2 .... 1 . i~peared at the trial court as the third accused. Josephat and Audax were rearrested and taken to the police station for Investigation. According to PW3, it was the second .appellant who implicated the 1st appellant (Deogratias) and led to his arrest. Led by the second appellant, Deogratias' house was searched from which properties like, pillow cases, jacket, and various books and a suitcase believed to be those of the deceased were recovered. Deogratias was then arrested and jointly charged with the other two for the murder of Professor Katoke. In convicting the appellants, the trial court relied on three pieces of evidence. First, the appellants' own .extra judicial statements which were admitted as exhibits P9 (from the 1st appellant) and PS (from the 2nd appellant) respectively, second the articles found in possession of the 1st appellant (Exhibit P7) by PW3 who was led there by the second appellant; third, the conduct of the second appellant. The trial court also found that a common intention had been formed by the two appellants in committing the crime, when they conspired to steal from the deceased which was an unlawful act, which led to the death of the deceased. 3 Those findings came under a heavy attack from the learned counsel for the appellants. Mr. Serapias Kahangwa, ·1earned counsel for the 1st appellant formulated three grounds of attack. Mr. Wilbald Butambala learned counsel for the second appellant put forward one ground of appeal. We shall proceed to examine those grounds below. In the first ground, Mr. Kahangwa, in effect, submitted that, having found that the 1st appellant's extra judicial statement was nothing but the truth, it was wrong for the trial court to have found that there was a common intention between the two to commit the offence. This was because in Exhibit P9 the appellant exculpates himself from the offence, and if that is true, then he could not have been associated with the commission of the crime. Mr. Athumani Matuma, learned State Attorney, who appeared for the respondent/Republic, along with Ms Grace Komba, learned State Attorney had a ready answer to that complaint. His answer was that the existence of a common intention was, in each case, a question of law. The law is set out in sections 22 and 23 of the 4 r1 P~nal Code. He pointed out .that so long as the appellant admitted in Exhibit pg that he knew and was willing to assist by waiting on the second appellant stupefy the deceased in order to enable him steal goods from the deceased, and for. him (the 1st appellant) to convey the stolen goods, that made him a party to the offence and common intention was thereby established. Mr. Kahangwa's submission is logically attractive but not legally and factually tenable. We have looked at Exhibit pg ourselves. Part of that statement is reproduced below: · "Siku hiyo aliyonipa shs 25,000/- nilimkuta kijana wake wa kazi aitwaye Josephat Mukwano. Alianza kunieleza kwamba kuna vitu ambavyo alitaka avitoe kwa mzee (Katoke) iii nimpelekee Bukoba. Nilikubali, alisema nirudi tarehe-11.8.2003 iii anipatie vitu hivyo. Nilienda Bukoba na kurudi tarehe 11.8.2003... Tukaingia nyumbani kwa marehemu Profesa Katoke tukamkuta Josephat anampikia mbwa... Nilimuuliza vitu alivyoahidi nimpelekee Bukoba 5 0 ·angevitoaje ndani? Alisema · alikuwa na vidonge vya PIRITON angemwekea kwenye juisi iii a/ale usingizi na angetoa vitu hivyo alivyotaka ambavyo ni ... " This means that the appellant was privy to preparation to commit an unlawful act, which was to induce stupor into the deceased so as to enable Josephat to steal some things from his house. Later, he actively took part in parking the stolen goods into a bag. ''Mimi na Pius tulivipaki kwenye begi mbili ambazo Josephat alikuwa ameandaa tayari'~ Then he was also cognizant of the next evil plan. "Audax alitoa wazo kwamba tujifanye kumfunga kamba marehemu iii asubuhi watu wakifika wafikirie kwamba alivamiwa na majambazi na kumwibia... Kabla . hawajamfunga, Josephat na Audax walituamuru ti.Jrudi jikoni wangetukuta huko. Tulichukua vitu 6 :. nilivyopakia kwenye mabegi tukaenda navyo jikoni. " These extracts, from _his extra judicial statement, show that the appellant was hand in glove with. the second appellant and other persons, at every stage of the_ planning and operation of the offences committed. Mr. Kahangwa is certainly right in his reference to the decision of DAMIANO PETRO and JACKSON ABRAHAM v R (1980) TLR 260, that mere presence at the scene of crime does not, constitute one a party to an offence, or establish common intention; but it was held in GODFREY JAMES IHUYA v R (1980) TLR 197 by this Court that: "To constitute a · common intention to .prosecute an unlawful purpose ... it is not necessary that there should have been any concerted agreement between the accused persons prior to the attack of the so called thief. Their common intention may be inferred from their presence, their actions, and the omission of any them to dissociate himself from the assault. " 7 r . . {J) Irt the present case, according to Exhibit P9, the first appellant was not only present at the scene of the crime, and fully participated in the initial unlawful. purpose, but also, by his actions and omissions, • did not actively dissociate himself from what Josephat (the second appellant) and Audax proposed to do to the deceased. We therefore find ourselves in agreement with Mr. Matuma, that in this case, there was, as correctly found by the trial court, common intention between the appellants. We consequently dismiss the first ground of appeal. In the second ground, Mr. Kahangwa criticized the trial court for founding the 1st appellant's conviction on the confession of his co- accused. He forcefully argued that in law a conviction of an accused cannot be founded on the confession of a co-accused without corroboration. If the prosecution relied on the properties found with him as corroboration, they were not adequately described and identified as those of the deceased; so they could not corroborate. 8 .. Mr. Matuma, quickly pointed out that although the purported properties did not have a description, it was the. second appellant • who led them to where they were found and the appellant did not claim their ownership. It is trite law that under section 33 (2) of the Evidence Act (Cap 6 - R.E. 2002) no conviction can be founded on the uncorroborated confession of a co-accused (See MT 38870 PTE RAJAB MOHAMED AND OTHERS v R Criminal Appeal No. 141 of 1992 ( unreported). We also think that the law is certain that if a person is found with goods recently stolen from a person murdered in a house, that raises a presumption that the accused was the murderer and unless he can give a reasonable account of the manner in which he became possessed of the goods, he would be convicted of the offence (See . ALLY BAKARI AND PILI BAKARI v R (1992), TLR 10). It is not, of course, the law that if an accused does not claim ownership of the goods found with him, the doctrine of recent 9 ~ . ppssession would necessarily apply, as claimed by Mr. Matuma. Even if the appellant in this case did not claim ownership, this did not relieve the prosecution of their obligation to discharge their burden of proof to the requisite standard. (See SALEHE MWENYE & 3 OTHERS v R Criminal Appeal No. 66 of 2006 (unreported). So the burden remained on the prosecution throughout to prove that those properties belonged to the deceased and all that the appellant was required to do was to give an explanation that could possibly be true. And this will have to be judged in the light of all the circumstances taken together and not in isolation .. In this case apart from the appellant's own extra judicial statement, it was PW3 who told the trial court, what items he seized from the appellant, and described those items before they were received in evidence. The appellant explained that all the items found with him were his. But after looking at the evidence of PW3 critically, we are of the unshaken view that the appellant did not give a plausib_le explanation. This is part of his evidence, which was not .challenged: - 10 . "When the witnesses arrived we ·entered inside the house. We saw a suit case which was at the sitting room. The suspect Josephat Mukwano identified the suit case as the one which was used to carry the items which were stolen from the deceased. We then opened the suit case and found a bag which had various clothes including bed sheets/ pillow cases, books/ .Jacket shampoos/ and a bottle of cream. The suspect Josephat Mukwano identified those items as belonging to the deceased'~ We think that under ordinary circumstances, it is not normal for one to keep his suit case in his sitting room instead of as in this case, in his own bedroom. It is equally peculiar for one to keep shampoos, books and creams in a bag hidden in a suit case, for in real life, these items are used on a daily basis. This is suspicious conduct, and a court may draw such inferences as are humanly possible; and we think that the appellant's conduct there and taken in the light of the evidence of PW3 that it was the second appellant who identified them, we are satisfied that those properties belonged to the 11 ,,f deceased Professor Katoke; and the appellant had no business to be • with them. So, the conviction of the 1st appellant is not only based on the second appellant's confession, but also his own confession (Exhibit P9), his own conduct and the circumstances in which he was found with properties which were identified by the second appellant as belonging to the deceased. The second ground of appeal therefore also fails and is dismissed. The third ground attacks the trial court's finding that the 1st appellant did not cross examine PW3 regarding the ownership of the properties at his residence. Mr. Kahangwa submitted that this amounts to shifting the burden of proof to the appellant and it was a misdirection. Mr, Matuma, reacted by submitting that the trial court was not closer to shifting the burden of proof, but was just trying. to satisfy itself about the probability of the appellant's defence. Mr. Kahangwa is right in principle that it is essentially wrong for a trial court to accept the prosecution case and then to cast on the 12 deifence the onus of rebutting or casting doubt on that case (See MALAND() BADI AND 3 OTHERS v R ·Criminal Appeal No. 64 of 1993 (unreported), HUSSEIN IDDI AND ANOTHER v R, (1986) TLR 166. We think· that in the course of evaluating or reevaluating the evidence, a court is entitled, to consider the effect of failing to cross examine a witness on matters in issue without necessarily shifting the burden of proof. Thus in CYPRIAN A. KIBOGOYO v R Criminal Appeal No. 88 of 1992 (unreported) it was held that facts not cross examined upon are taken as having been admitted. The co~rts are permitted to draw such inferences under section 122 of the Evidence Act. But this is a first appeal. This Court is therefore entitled to re evaluate the evidence and come to its own conclusions, the misdirections (if any) of the trial court notwithstanding (See PETERS SUNDAY POST (1958) 1 EA 424. In this case, we have carefully looked at all the evidence on record against the 1st appellant and we are satisfied that the evidence against him is overwhelming. The trial 13 ~ court's observation that the appellant did not cross examine PW3 on • the properties was a statement of fact and did not amount to shifting the burden of proof to the defence. We dismiss this ground too. As intimated, Mr. Butambala raised only one ground of appeal which was that the extra judicial statement of his client, (Exhibit P9), the second appellant was not voluntary and therefore wrongly admitted and acted upon by the trial court to convict him. The learned counsel submitted that there was on record, vivid evidence that he was tortured for 6 days before he was taken to a justice of the peace. According to the justice of peace (PW4) it was recorded in the statement that the appellant had some fresh bruises when he appeared before the justice of the peace. These circumstances militate against the finding that the statement was voluntary. So, in his view, the conviction was faulty and should.not be let to stand.· Mr. Matuma submitted in response that the trial court was right in finding that the statement was voluntary and so lawfully received it. He said that this was corroborated by circumstancial evidence; in that the deceased's premises were not broken into on the material 14 ,/( dcJ,y and he was one of the residents there, and also led the police to the discovery of the deceased's properties. He went on to submit that even if proved, torture in itself is not a ground for vitiating a conviction if the statement is otherwise found true. It is true that in paragraph 6 of the form containing preliminary questions about the suspect brought (the 2nd appellant) before the justice of the peace (Exhibit PB) the Justice of the peace observed. ''Ameonekana na mchubuko sehemu ya shingo na mgongoni si ya muda mrefu'~ Literally this means: ''He was seen with fresh bruises at the neck and back'~ We agree that this could lend credence to his complaints in Court that he was tortured before being taken to the justice of the peace. In STEPHEN JOHN & OTHERS v R Criminal Appeal No. 79 of 1999 (unreported), this Court took the view that: - "Where an accused claims that he was tortured, and is backed by visible marks of injuries/ it is incumbent upon the trial court 15 • to be more cautious in the evaluation and consideration of the cautioned statement, even of its admissibility had not been objected to, and such caution statement should be given little if not any weight at all'~ With respect therefore, if there were any signs of torture they did not affect the admissibility but only the weight of such statements. The above caution was given in respect of a "cautioned statements" but we think it would equally apply to extra judicial statements. But the difference is that in that case the voluntaries was not tested. Here, there was a trial within trial to test whether the appellant gave it voluntarily and freely. The trial judge found that the appellant was a free agent when he gave the extra judicial statement. Besides, he took all the necessary cautions, before acting on the repudiated confession. He was satisfied that the statement contained nothing but the truth. We are satisfied that the appellant's confession relating to the planning and eventually, theft of the deceased's properties that led to 16 ( tge discovery of those properties was properly admitted by the trial court. We are fortified in this view by a long chain of authorities, and further supported by the provisions of Section 31 of the Evidence Act (Cap. 6 R.E. 2002) which reads: "Where any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered is relevant. " (See also PETER MFALAMAGOHA v R Criminal Appeal No. 11 of 1979 (unreported). But if the bruises seen on his body were the ones that influenced him to give his statement to the justice of the peace, we can see no reason at all why the appellant could not tell• PW4 so. Given the nature of the statement which was elaborate, like the trial court, we are satisfied that the extra judicial statement (Exhibit PS) • was true and freely made by the second appellant. 17 With respect therefore, we disagree with Mr. Butambala. Although there were signs of torture on the second appellant, the trial court took all the necessary. cautions and rightly admitted his confession before the justice of the peace and properly directed himself on the danger of acting on such evidence. We cannot fault him. This ground of appeal fails too. For all the above reasons we find that this appeal is devoid of substance. It is accordingly dismissed in its entirety. DATED at MWANZA this 7th day of March, 2012. S. J. BWANA JUSTICE OF APPEAL S. A. MASSATI· JUSTICE OF APPEAL K. MUSSA JUSITCE OF APPEAL ~IKYA . .\ ENIOR DEPUTY REGISTRAR COURT OF APPEAL -~ •,.~ -----··--- ~~~ r. . 18 e!dence is reproachful and cannot be corroborated ( see Aziz Abdallatt v R (1991) TLR 71). , All said and done,. we allow this appeal in its entirety. The conviction and sentence. are, respectively, quashed -and set aside. The appellant is to be released from custody forthwith unless he is held there for some other lawful cause. DATED at MWANZA this 15th day of March, 2013. S. J. BWANA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL 13 J'