thomas ernest msungu nyoka mkenya vs republic 2013 tzca 396 18 june 2013

N T H E C O U R T OF A P P E A L OF T A N Z A N I A AT A R U S H A (CORAM : M S Q F F E , J.A., K A IJA G E J .A ., A n d M U S S A , 3.A.) C R I M I N A L A P P E A L NO. 78 O F 2 0 1 2 T H O M A S E R N E S T M S U N G U @ N YO KA M K E N Y A ...............A P P E L L A N T VER SU S THE R E P U B L I C ................................................................ , R E S P O N D E N T (A p p e a l From th e Ju d g m e n t o f th e H ig h C o u r t o f T a n za n ia . at M oshi) f Mzuna, J. ) d a te d tin : 3Ql“ day o f S e p te m b e r, 2 0 1 1 in C r im in a l A ppeal No. 5 o f 2 0 1 0 J U D GM ENT OF THE C O U R T 14 & IS J ii n s , <2013 M SQ FFE, J.A: On 21/07/2006 at about 20.45 hours a group of armed bandits broke into the shop of PW1 Ricnard Samwel Mushi situated at Lyamungo Kati, Hai, Kilimanjaro Region, and stole a number of items. The incident was repoficc r_, i, poisca , ;f ^sagai'ions were- ■•:rr, ; out. In r.ha process, me appellant and others .vere named as having been responsible for the offence in question. T h e y were accordingly arrested and charged with '^.med robbery contrary to section 287A of the Penal-Code before the District Court of Moshi. After a full trial the other accused persons were acquitted. The appellart was convicted as charged and sentenced to the statutory' thirty years term of imprisonment. His first appeal to the High Court of Tanzania at Moshi was dismissed hence this second appeal. Uefore us he appeared in person while the respondent Republic had the vices of Mr. Haruni B. Matagane, learned State Attorney, who argued in .support of the appeal. With respect, Mr. Matagane w as justified in not supporting the conviction and sentence for reasons which we will demonstrate hereunder. Admittedly the appellant was not identified at the scene. His -j.wlcL'ion was based mainly on'two aspects of the evidence to wit (a) his :autioned and extra-judicial statements and (b) the ballistic expert's report o the effect that the three spent cartridges of a shotgun calibre 12 found a the scene of crime matched with the shotgun that was retrieved at a • ;■ tree in M-v ^he ?Dne!!ant-h^d directed the •v :e to the place where the shotgun was hidden. We propose to begin with the cautioned and extra-judicial tatemonts. We have carefully read these statements. After doing so, we 2 • - I N- -isi-aaano that there is nothing in them to show ;are in a g r e e m e n t w i t h Mr. rlatagan. tnai 'th a t the aopeliant e v e r confessed to have been responsible for the jssue in effect, this means that these statements were worthless in the p ro se cu tio n case against the appellant in that they had no probative value. To this end, the courts below erred in relying on them in affirming the p r o s e c u t io n case against the appellant. Thi; brings us to the ballistic expert's report. The proceedings of the tria, District Court show that the report was produced and admitted in evidence on 17/07/2007 without ob]ect,on by the appellant and his fellow accused persons. A p p a r e n t l y j u m ^ ^ .^ CiiHmiHadbvr-1t. Matagane, we too fail to understand why it was not produced by the maker of the report who was one C.6190 D/Sgt. \Mo c;o for reasons which will Raphael Maira, a firearms examiner. We say become apparent hereunder. , .. Criminal Procedure A ll (o-.r 2002) (the Act), particularly sections 95, 96, 97, 98 and 99 thereof, it is evident that the key duty of a prosecutor is to prosecute . A prosecutor r^pnn1- assume the role of a prosecutor and a Witness at the same time. In tendering the report the prosecutor was actually assuming the role of a W itness......With" respect, that was wrong because in the process the prosecutor was not the sort of witness who could be capable of xamination upon oath or affirmation in terms of section 198(1) of the Act. As it is, since the prosecutor-was not a witness he could not be examined or cross-examined on the report. Ideally, it is good practice that a document should be produced in ev idence by its maker or author except where it is impossible to secure his attendance due to unforeseen circumstances such as those mentioned under section 34B (2) (a) of the Evidence Act (CAP 6 R.E. 2002), that is, if he is dead or unfit by reason of bodily or mental condition, etc. We say so because the maker or author will always be better placed to explain what the document is all about, the intricacies, if any, relating to the said document, etc. In the process, the said witness could always be examined and cross-examined on the said document. Very unfortunately the A:t h-3 no provision equivalent or similar to section 240(3) in relation to other reports. This subsection is similar to subsection (3) of section 291 of the same Act in relation to t riais before the High Court. Subsection (3> of section 2.40 reads:- (3) When 5 report referred to in this section is received in evidence the court m ay i f it thinks fit ■ a n d shall, if so requested by the accused or h is advocate, summon an d exam ine or -a k e available fo r cross-exam ination the person who mace the report, an d the court shall inform the a c c u s e d o f his right to require the person who m ade the report to be sum m oned in accordance with the provisions o f ::ris subsection. (Emphasis supplied.) 1 he above subsection applies to medical reports'. We wish the Act had provided for a similar provision in relation to other reports such as the one under discussion in this case. If there had been a similar provision in the Act the court could have easily summoned the firearms examiner, if it was minded to deem it fit to do so, or mandatorily summon him if requested by the accused persons after being informed of their right under the subsection of cross-ox-^.T'-inc hi,rv In saying so, we are aware that the Act makes provision for other reports by a Governm^n: analyst, a fingerprint expert and a handwriting expert under sections 233, 204 and 205, respectively, in which there is / // ........................ - ,• .................................. ■ ■■ ■ ............. room for summoning the particular expert for cross-examination. But section 240 (3) of the Act is still unique in that it places a duty on the court of in fo rm in g the accused person of his right to require the person who made the medical report to be summoned for purposes of cross- examination. In conclusion on the above point, we are of the considered opinion that in the light of the circumstances under which the ballistic expert's report was produced and admitted in evidence it was not safe to rely on it in convicting the appellant. Once the ballistic expert's report is disregarded it follows that the only other evidence against the appellant worth .addressing is that he confessed to the police officers and eventually showed them the place under the baobab tree where the shotgun was hidden and then retrieved. Indeed, the courts below hold the view that this was the sort of confession. leading to disco v -;\ ■■ sect:on 31 t'^ Evidence Act fCAD 6 R.E. 2002). With respect, this aspect of the evidence has its own shortcoming. Once the ballistic expert's report is disregarded it follows that there is no nexus between the shotgun and the spent cartridges seen at D i= so cwcause it is not easy to say with certainty the scene o, c n .ii- * 1 *■- 0 ^ - that the said cartridges were fired from the shotgun in question. At any rate, even if the firearms examiner had testified in court his vidence would still be that of an expert witness o n l y . A n e xE e r^ ^ tn e ss e merely gives an opinion and the value of that evidence depends upon the ex^edence_and jb jjity of the witness and the extent to which his opinion is i of other recognized experts in the suopo'ted by the opinion and experience particularjiglri - See R a j a b u Vs. Republic(1970) EA 395 at page 397. In other words, if the firearms examiner in the instant case had testified his evidence would not have been believed and acted upon wholesale. That evidence would have still been subjected to the test enunciated in Rajabu {supra). The judge on f.rst appeal made the following finding in connection with the ballistic expert's report:- It is true iliac tne ban h o c axpen uiu .. , _. - 1 s-.rf- ,.-/r /V- on the prosecution case l ms howeve, u rj h Ul ^ because it v.-ss a public docum ent based on expert evidence. Such om ission to m y view d id not occasion a failure o f justice and is curable under section 38S o f the Crim inal Procedure A ct CAP 20 R.E. 2002 . The appellant -never objected it(i.e. report ) when it w as tendered in court. With respect, it is true the appellant did not object to the production in evidence of the report. But in our view the learned judge misdirected h i m s e l f in making the above finding in view of our findings and conclusions above on the manner in which the report was produced and admitted in evidence. As already stated, the report ought not to have been produced by the prosecutor. Furthermore, although the report "was a public document based on expert evidence" in view of what we have stated above ideally it still ought to have been tested as per R a ja b u 's case [supra). As it is, there was no way in which the appellant could have cross- examined anyone in the case on the report. We do not therefore, think that this was an omission curable under section 388 (1) of the Act. For these* re-ison^ v/e allow the appeal of the appellant, quash his conviction for armed robbery ana set aside the sentence of 30 years imprisonment imposed on him. He is to be released from prison unless he is lawfully held herein. 8 dated at ARUSH/ this 17th day of June, 2013. J. H. MSOFFE J U S T I C E O F APPFAl S. S. KAIJAGE JjjSTICE O F A P P e a i K. M MUSSA J U S T I C E O F A PPFa; I cej^Jfy^haf this is a true c °Ry of the original. ^ r tfc ' />' o V : ;MAt rEyyo, )m . a . O F P U T Y REGiSTRApN u R T o F a v p f TT