20130227 TZHC Dodoma

I IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KILEO, J.A., ORIYO, J.A., And MMILLA, J. A.) CRIMINAL APPEAL NO. 185 OF 2010 ANDREA KITUNDU ••••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT {Appeal from the judgment of the High Court of Tanzania at Dodoma} (Mwangesi, J.} 1 - I dated the 6 th day of June , 2011 in Criminal Appeal No. 31 of 2010. JUDGMENT OF THE COURT 27th February, & 1st March, 2013 KILEO, J. A.: The appellant was arraigned for rape in the District Court of Iramba contrary to section 130 (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E. 2002. When the charge was read over to him he replied: '1t is true I had carnal knowledge of the said Suzana Yonah" following which a plea of guilty was accordingly entered. It was alleged that the appellant had carnal knowledge of a child of three years of age. Subsequently the facts were read over to him to which he also admitted. The trial magistrate however, 1 on the basis of the PF3 which did not show that rape had been committed convicted the appellant of attempted rape and upon the conviction he was sentenced to 30 years imprisonment and twelve strokes of corporal punishment. The High Court upheld his conviction and sentence except for the corporal punishment which was set aside. Still aggrieved the appellant has come to this Court on a second appeal. He has filed four grounds of appeal complaining inter alia that his plea in the District Court was a result of threats that he had received from the police. He also complained that the PF3 did not support the plea of guilty as there was no evidence that the victim was raped. In essence the appellant's grievance is that on the circumstances of the case his plea of guilty could not be maintained as it was not unequivocal. At the hearing of appeal the appellant appeared in person. He did not have much to say before us but he merely told us that he would respond after the Republic had submitted. The respondent Republic was represented by Ms. Neema Mwanda, learned Principal State Attorney who at first resisted the appeal. However after the Court pointed out the disparity between the facts read in court and the contents of the PF3 which 2 was tendered in court as part of the facts of the case she found it wise to support the appeal. She opined that on the circumstances of the case and especially considering the PF3 of the victim which stated that there were no bruises, no spermatozoa and everything being intact the appellant's plea could not be taken to have been unequivocal. This appeal centers on the question whether the appellant's plea in the trial court was unequivocal. If we establish that the appeal was unequivocal then that will be the end of the matter as section 360 (1) of the Criminal Procedure Act bars appeals from convictions based on pleas of guilty. The said provision states: ''360. (1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence. " The above is the general rule. We are however mindful of the fact that under certain circumstances, an appeal may be entertained notwithstanding a plea of guilty. Laurence Mpinga v. The Republic (1983) TLR 166 which was cited by this Court in Ramadhani Haima v. Republic - Criminal appeal No. 213 of 2009 (unreported) lists down some of those circumstances which are: 3 1. that, even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea ofguilty; 2. that he pleaded guilty as a result of mistake or misapprehension; 3. that the charge laid at his door disclosed no offence known to law; and 4. that upon the admitted facts he could not in law have been convicted of the offence charged. The above circumstances are not exhaustive. Each case will depend on its own peculiar surroundings. We think it is desirable, at this juncture, to reproduce the appellant's plea in the trial court. After the charge of rape was read over and explained to him he is recorded as having said: "It is true I had carnal knowledge with the said Suzana Yonah. " The appellant's plea was recorded as one of guilty and the following facts were read over to him: "The accused is a peasant of Ibada village. Yonah Onesmo is the father of the victim and he resides at Ibaga. Suzana d/o Yonah is the victim and she is aged 3 year (sic!) On 8/7/06 at 7. 00pm at Ibaga village Yonah onesmo was from a football match on arrival home he asked his wife where Suzana was. No one knew where the said Suzana d/o Yonah was. The said Yonah 4 Onesmo and his wife looked for Suzana d/o Yonah. They saw her coming from a shamba. They asked the said Suzana where she was but she did not reply. They observed the said Suzana Yonah and saw her with grass on her back and head They examined her in her vagina and saw the vagina was bruised and there were spermatozoa flowing from her vagina. Suzana d/o Yonah was interrogated and she said the one who had carnal knowledge of her was the accused who drive Mwl. Zakaria's cattle drawn plough. The accused was arrested and he admitted he had sexual intercourse with Suzana in a maize farm. The accused was sent to the chairman of the sub-village and also the victim. On 9/7/2006 at 4. 00 am the case was opened at lbaga Police Post and PF3 was issued to the victim. The accused was later charged with the present offence. I hereby tender the PF3 as exhibit. Accused: No objection. Court: PF3 admitted and marked as exh. Pl. When the accused reached lbaga Police Post he gave his cautioned statement which I hereby tender as exhibit Accused: No objection Court: Accused's caution statement admitted and marked exh. P2 Accused: The facts are correct. I did the act due to sexual desire. Finding: As the PF3 does not disclose that the victim was injured in her vagina and as spermatozoa were seen flowing from the victim's vagina the accused must have attempted rape c/s 132 of the Penal Code and he is accordingly convicted of attempted rape. 5 . ...,, SIGNED PDM" We have given a lot of thought to this case after which we have come to the settled view that on the circumstances of the case the plea of the appellant could not be taken to have been unequivocal. In the first place, he was convicted of a charge that he was not initially charged with and to which he did not plead. We think that it is unsafe to convict on a plea of guilty to a charge that an accused was not initially charged with and the facts to which he had no chance to say whether or not he admitted, notwithstanding the fact that the latter is a lesser offence. For a plea of guilty to stand the court must satisfy itself without any doubt and must be clear in its mind, that an accused fully comprehends what he is actually faced with, otherwise injustice may result. In this case, it is on record that the appellant stated that he had carnal knowledge of the victim. However, the circumstances showed that there was no such carnal knowledge. Even the trial magistrate actually found that there was no carnal knowledge. In the circumstances how can it then be said that the appellant's plea was unequivocal? 6 Further still, our examination of the PF3 that was tendered in the trial court in support of the charge reveals to us that its contents did not match with the facts that were adduced in court. The PF3 was signed by the police on the same day of the incident (8.7.2006) and the doctor who examined the victim filled it early on the following day- 9.7.2006. Whereas in the facts that were read over as constituting the offence it was stated that the victim had sustained some bruises on her vagina which was flowing with semen, the PF3 stated very clearly that there were no bruises and no spermatozoa seen. The examining Medical Officer commented that everything was intact. While one could assume that the sperms might have disappeared in the span of a few hours after the commission of the crime, it is inconceivable that the bruises would have completely disappeared within that span of time. The above set of circumstances in our view should have put both the trial court and the High Court on the alert with regard to the appellant's plea. A bell should have rung in the minds of the learned appellate judge and the trial Principal District Magistrate that something was amiss. In view of the above considerations we find that the appeal by Andrea Kitundu has merit. We accordingly allow it. Conviction entered is 7 quashed and sentence is set aside. Given the circumstances of the case we consider it not prudent to order a retrial. We accordingly order that the appellant be released from custody forthwith unless he is therein held for some other lawful cause. DATED at DODOMA this 27th Day of February 2013 E. A. KILEO JUSTICE OF APPEAL K. K.ORIYO JUSTICE OF APPEAL · B.M.K. MMILLA JUSTICE OF APPEAL DEP co 8