20120626 TZHC Mbeya1

IN THE HIGH COURT OF TANZANIA AT MREVA DC CRIMINAL APPEAL NUMBER 43 OF 2011 (Originating from Criminal case Number 845 of 1999 of the District Court of Mbeya at Mbeya.) STOMEN PATRICK KYANDO ---------------------------- APPELLANT VERSUS T H E REP U B LI C RE S P0 fsJ DEFJ 1 JUDGMENT 21/05 & ?$/06/2012 S. S. MWANGESI J.: ThQ. appellant herein together with other two that is, Majerahi Chale and Atuganile Watson were charged at the District Court of Mbeya with five counts. In the first count they were being charged with the offence of armed robbery contrary to section 285 and 286 of the Penal Code Cap 16 Volume 1 of the Laws Revised as amended by Act Number 10 of 1989. It was the case for the prosecution that, on the 19th day of October 19994 about 0030 hours, at Liberty Bar and Guest house within the Municipality District and Region of Mbeya, the accused did jointly and together, steal cash TZs. 127,000I from one Omary 1 41 Shaban and ø immediately before and/or after the time of such stealing, did use actual violence by using a pistol and shot gun in order to obtain and or retain the stolen property. In the second count, all accused did stand charged with the offence of armmed robbery contrary to section 285 and 286 of the Penal Code Cap 16 Volume I of the Laws Revised as amended by Act Number 10 of 1989. The particulars of the offence were to the effect that, on the 19th day of October 1999 at about 0035 hours at Liberty bar and Guest house within the Municipality District and Region of Mbeya, all the accused did jointly and together teal cash TZs. 27,000/ and one camera valued at TZs. 75,000/= all total valued at TZs. 102,0001= the property of one Zawadi Kajela, and immediately before or after the time of stealing, did use actual violence to wit: used a pistol and a shot gun in order to obtain and or retain the stolen property. The accused were further charged with the offences of armed robbery in respect of the third, fourth and fifth counts. For the third count it was alleged by the prosecution that on the same date and place at about 0340 ours, the accused did steal TZs. 24,000/= and one wrist watch valued at TZs. 3,500/= all total valued at TZs. 27,350/= the property of one Neema Edward. While in the fourth count, the same accused at the same date and place at about 0045 hours, they did steal one radio valued at TZs. 75,000/= the property of one Emanuel Swaya. And in the fifth and !ast count, on the same date and place, the same accused were charged with the offence of stealing under the same circumstances, one video deck valued at TZs. 180,000/= and different types of alcohol valued at TZs. 200,000/= all total valued at TZs. 380,0001= the property of one Zumba Mwashemele. After all charges had been denied by all accused, the prosecution did summon four witnesses to establish the commission of the offence by all accused. At that juncture, all accused were found to have a case to answer. 2 4/ They were thus invited to enter their defenses, a thing which they did do without ) summoning any witnesses in additional to their own testimonies. And upon the learned trial Resident Magistrate evaluating the evidence placed before him, was of the considered vie7'that the case had been sufficiently established against the first accused only. To that end, he did convict the first accused to all counts and sentenced him to concurrent sentences of thirty (30) years imprisonment. On their part, the second and third accused were acquitted and set at liberty. The current appeal by the appellant is to challenge the findings of the trial Court. In his memorandum of appeal, the appellant has enumerated about four grounds of appeal. However, the fourth ground is just concluding remarks which bi- under the circumstances cannot be termed to substantial ground of appeal. The basic grounds that stand for consideration by the Court are therefore three. In the first ground of appeal, the appellant has challenged the evidence of identification that was relied upon by the trial Court to found him guty. It has been the view of the appellant that, since the offence was alleged to have been committed during night, there was no evidence tendered to establish that he had been perfectly identified at the material time. The complaint by the appellant in the second ground of appeal has been that, the evidence by PW3 to the effect that he had arrested the appellant with the robbed video deck was never corroborated by any other independent evidence. As such, according to the appellant, there was no justificabon for the trial Court to hold him liable to the charged offences. With regard to the third ground of the appeal, the trial Court has been faulted for having relied on what was said to be a caution statement obtained from the appellant, while he did dispute 4 its being admitted as exhibit on the bases that, it had been illegally obtained from him. According to his feelings, the trial Court was duty bound to conduct a trial within trial to establish the 3 - voluntariness of the same as per the holding in the case of Shihobe Seni and Another Versus Republic [1992] TLR 330. The respondent in this appeal was represented by Ms Ngo16 Learned State Attorney who did not support the conviction that was entered to the appellant by the trial Court. In supporting the grounds of appeal raised by the appellant, she did second the appellant in the first ground of appeal that, indeed in the matter at hand, the way the appellant was identified by the witnesses during the commission of the offence that occurred during night was never made clear and thereby failing to meet the requirements that were enunciated in the case of Raymond Francis Versus Republic [1994] TLR 100. The learned State Attorney was again at one with the appellant in the second ground that, after the caution statement alleged to have been obtained from the appellant had been objected, the Court was duty bound to conduct an inquiry as per the ruling of the Court of Appeal in the case of Robinson Mwanjisi and Others Versus The Republic Criminal Appeal Number 154 of 1994 Court of Appeal of Tanzania Dar es salaam Registry (unreported). On those bases, the learned State Attorney has invited this Court to find that the appeal by the appellant is meritorious. In the light of the above submissions, the issue for this Court to deliberate is as to whether there is any merit in this appeal. This Court upon having gone through the records of the trial Court was able to note that, in convicting the appellant to all charges which he stood charged with, the learned trial Resident Magistrate did base his findings on the caution statement that was alleged to have been given by the appellant to the Police Officer. In the same, it has been indicated that the appellant did admit to have participated in comi1iitting the offences at issue. However, when the said statement was being tendered as exhibit in Court, the appellant did strenuously dispute to its being admitted on 4 the bases that, he had just been forced to sign a document which he did not know its contents. Such objection by the appellant to the admission of the said document was simply overruled by the learned trial Magistrate. The question that does crop from such situation is as to whether the trial Magistrate was justified in so holding. The procedure to be adopted in a situation where the admission of a caution statement has been retracted or repudiated by the maker is not statutorily provided. However, there are judicial directions that have been developed by practice which have formed part of our laws. Th Court of Appeal in the case Shihobe Seni that has been cited by the appellant above, where there was an issue of repudiated confession during the trial at Court, did hold that: "Where confessions were repudiated, then there was a need for ascertaining their reliability and or seek corroboration, but the learned trial Judge did not even warn himself of that requirement." What can be gathered from the foregoing holding is that, a repudiated confession has not to be acted upon unless its voluntariness has been ascertained by the trial Judge/Magistrate. Alternatively, the trial Judge/Magistrate can seek corroboration from other independent evidence. In the case of Robnson Mwanjisi also cited above by the leaned State Attorney, the same Court of Appeal did hold that, where a caution statement intended to be tendered as exhibit in Court has been repudiated by the maker, if the proceedings are in the High Court, a trial within trial has to be conducted. And if the proceedings are in the subordinate Courts, an inquiry has to be made by the trial Magistrate to establish the voluntariness of the alleged statement from the accused. 5 4, On the bases of the holdings in the cases above, after the appellant had ') repudiated his statement, the learned trial Resident Magistrate was duty bound to conduct an inquiry and make a ruling as to whether he was satisfied that the appellant had given the statement voluntarily or not. Alternatively, he ought to have pointed out if there was any other independent evidence which did corroborate the contents of the alleged caution statement. The fact that such inquiry was never made, and further that, there was no any other independent evidence to corroborate the repudiated caution statement, then, it was improper to found the conviction on the appellant on the bases of the said caution statement. To that end, the findings of the trial Court is hereby quashed, and the sentence of imprisonment for a term of thirty years to each count which had been imposed to the appellant is set aside. In lieu thereof, it is ordered that the appellant be set at liberty forthwith unless he is lawfully hed for 3ny other justifiable cause. Order accordingly. / MWANGESI) JUDGE / c I -s .......-, _/ 2—O6-2O12