20140303 TZCA Dar es Salaam

ti IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RUTAKANGWA, J.A., MASSATI, J.A., And JUMA J.A.) CRIMINAL APPEAL NO. 227 OF 2009 1. OMARI IDDI MBEZI } 2. VISTOR CHARLES , 3. JOHN ANDREW 4. JAFARI IDDI MBEZI ........................................ APPELLANTS VERSUS THE REPUBLIC ....................................................... RESPONDENTS (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Makuru, J.) dated the l0 nd day of June, 2009 in Criminal Appeal No. 184 of 2008 ...........•...... JUDGMENT OF THE COURT 3rd & ..... March, 2014 MASSATI, J.A.: At midnight of the 24th July, 2006, JONGE SEMBETE (PWl), a resident of Kingolwira, on the outskirts of Morogoro Municipality, was at his home, nursing himself, as he was sick. He was visited by uninvited guests, not to wish him well, but to inflict more pain and sorrow on him. Those guests not only broke into his residence, but also thoroughly manhandled him with the aid of a gun, machetes and iron bars, with which they were 1 armed. The drama ended with him being shot in his right leg, and made to part with one set of television set (HITACHI), one deck (SONY), two cellular phones (NOKIA), Tshs. 200,000/= in cash, one coat, two waist belts, and a black wallet. Thanks to his neighbours, he was escorted to the police station where he was issued with a PF 3 and taken to hospital where he was admitted. Nearly a month later, PWl was sent for to identify his television set. According to PW2 and PW3, the said TV set was recovered from the second appellant's room at Mafisa, on 21 st August, 2006. According to PW4 D. 4754 D/CPL. JOSEPH, the robbery was reported on the same day, and he and his patrol team visited the scene of crime immediately. According to him, and PWS, the first appellant was arrested at Mikese aboard a bus heading to Dar es Salaam on 20/8/2006. The bus was stopped and searched by police officers. The first appellant was found to have had a fresh wound on the right leg. He was also found with a chiselled barrel shotgun, No 03030042. Thereupon he was arrested and upon interrogation, he named the other appellants. With that clue and after some manhunt, the other appellants were arrested and charged, and 2 all made their first appearances in the District Court of Morogoro on 12/12/ 2006, where they protested their innocence. Before the trial court, the prosecution presented 5 witnesses and 5 exhibits, all to the effect that, PWl sufficiently identified the robbers; that the second appellant was recently found in possession of PWl's television set, (Exh PEl and Exh PE4) and that the appellants voluntarily confessed to have committed the robbery and implicated each other in their cautioned statements (Exh PE3 collectively). On the other hand, all the appellants denied to have committed the offence, or to have made any statements to the police voluntarily. In particular, the first appellant told the trial court that he was arrested on his way home from Msamvu, (and not Mikese) for a different charge on 19/8/2007. He sustained the leg injury from the beating by the police which necessitated the amputation of his leg. The second appellant alleged that the TV screen belonged to him and produced his receipt as Exh DEi. The third appellant said that he was arrested on 9/11/2006 and joined in the charge on the following day. The fourth appellant told the trial court that he was arrested on 8/12/2006 on his way home from Msamvu and on 10/12/2006, asked to sign some papers at 3 gun-point, and after sustaining some injuries from beatings by the police who prepared the papers. He tendered his PF3 as Exh DE2. He never confessed to anything, he said. The trial court was satisfied that the prosecution case was proved beyond reasonable doubt, and so convicted the appellants, and sentenced them to 30 years imprisonment, the statutory minimum sentence, and twelve strokes each. Their appeals to the High Court were unsuccessful, hence this, their second appeal. In this Court, the appellants appeared in person and prosecuted their joint 13 ground memorandum of appeal which essentially revolved around the issues of identification, recent possession and the admissibility of the cautioned statements which form the foundation rock of their convictions. Armed with an attached list of authorities, the appellants argue that; First their visual identification by PW1 was not watertight, as the intensity of the alleged light was not disclosed, and instead PW1 relied on dock identification, which was not preceded by ah identification parade. Secondly, that the cautioned statements (Exh P3 collectively) were wrongly 4 :i admitted and relied on to found their ½onvictions; and 'lastly, the doctrine I of recent possession was wrongly invoked against the ~econd appellant in ,, ,i the circumstances. There were also other grounds of appeal, which we do not consider necessary to examine fo~ the purposes of determining this appeal. On its part, the respondent/Republic was represented by Mr. Tumaini 'I Kweka, learned Senior State Attorney. Submitting in support of the appeal, ,,I •! ' Mr. Kweka argued that in the absence: of a description of the intensity of 1 I the light, which allegedly enabled PW1 to identify his assailants who were 1 'i all strangers to him and in the absence ., of any evidence of description of any of the suspects by PWl at the earl 1est opportunity,i and in the absence 1 I of an identification parade, the eviderce of visual identification' was not watertight, and that of dock identification most unreliable. He went on to ' ' submit that, the conviction of the second appellant on' the basis of recent ! possession of the TV (Exh PE 1) was 'not sustainable in I the absence of a 'i prior and detailed description of the TV in the charge sheet, and by PWl prior to its admission as an exhibit ! particularly so, as no receipt was I produced along as an exhibit. On the cautioned statements (Exh PE3 I 5 collectively), the learned counsel pointed out that since their admission was preceded by an objection from the alleged makers, it was illegal for the I trial court to have admitted them witho:µt an inquiry. So they cannot form the basis of the appellants' convictions. Mr. Kweka finally submitted that it 1 was wrong for the two courts belo~ to have conyicted the second appellant on the basis of the weakness of his defence, after finding that the receipt for the TV he produced in dourt as his exhibit was fake, when 'I I PW1 produced no receipt at all. This, he submitted, amounted to shifting the burden of proof, contrary to the principles' of our criminal I jurisprudence. He thus urged us to allow the appeal. It is common ground that the yonvictions of the appellants were founded on the evidence of visual idrntification, the doctrine of recent possession, and the confessions contained in the r~tracted cautioned statements of the appellants. :i It is not in dispute that PWl's home was invaded on the thick of the i night, and that he was robbed and injured. But it is not also disputed that i' the robbers were strangers to PWL ! He was the only . witness and had 6 never seen them before. The ordeal no doubt traumatized him. If a court of law is to rely on the evidence of such a witness on the visual identification of the culprits, this Court has developed several guidelines to be followed in such cases in order to avoid mistaken identities of the suspects, to mention just a few:- (i) If the witness is relyif?g on some light as an aid of visual identification he must describe the source I and intensity of that light. (ii) The witness should explain how close he was to the culprit (s) and the time spent on the encounter. i (iii) The witness should describe the culprit or culprits in terms of body build, complexion, size, ,attire, or any peculiar body features, to the next person that he comes across and sh9uld repeat those descriptions at his first report to the police on the crime, who would in turn testify to that effect to lend credence to such witness's evidence. 7 (iv) Ideally, upon receiving the description of the suspect(s) the police should mount an identification parade to test the witness's memory, and then at the trial the witness should be led to identify him ( again. (See WAZIRI AMANI v R (1980) TLR 752, R v M.B. ALLUI (1942) 9 EACA 72, SWELU MARAMOJA v R Criminal Appeal No. 43 of 1991 (unreported), AUGUSTNE KENTE v R (1982) TLR. 122, ISSA MGARA @ SHUKA v R Criminal Appeal No. 37 of 2005 (unreported), DENNIS NYAKONDA v R Criminal Appeal No. 159 of 1990 (unreported) etc. In the present case, although PW1 told the trial court that there was electric light, he did not describe the nature and intensity of the electric light. Although he also told the trial court that the ordeal lasted for about 2 hours and that neighbours came to assist him, it is strange that none of the neighbours came forward when the fracas was going on, not everi after the bandits had fired several shots, or even· appeared to testify in court. It is also disturbing that PW1 could not describe any of his assailants to the police or his neighbours immediately after the incident. On the contrary, 8 I . . .. -- he admitted having seen them for the ~rst time_ in court. That was dock ! identification. But without a previqus identification parade, dock identification however numerous, is_ usyless, says the law (See -MUSSA ELIAS AND 2 OTHERS v. R Criminal Appeal No. 172 9f 199~ (unreported) With all those d_iscrepancies we agree with· the appellants and Mr. . . Kweka that, it ~annot ·be said that the identification of the appellants was watertight. With regard to the invocation of the doctrine of recent possession to connect the second appellant. with the robbery upor:i his having been found i in possession of a TV screen, we first wish to restate the position of the law. Under our criminal law, the une~plained. possession by an accused I person of the ·fruits of a crime recently after it has been committed, is i presumptive' evidenc~ . against the accused, not only on a charge of theft or receiving with guilty knowledge, buf of any aggravated crime such .as I murder, when there is -reason for concluding that such aggravated and · minor crimes were committed in the same transactions. · (See MWITA WAMBURA v R Criminal Appeal No. 56 of 1992 (unreported). It is now 9 also settled law that for a proper application of that dqctrine, it must be ~ established that; first, that the property was found with the suspect, two, the property must be sufficiently identified to be that of the complainant, three, that the property was stolen recently from the complainant, four, the property must have a reference to the charge laid against the accused. The fact that the accused does not claim to be the owner of the property does not relieve the prosecution of their burden of proof (See HAMIS MEURE v R (1993) TLR 213 ALLY BAKARI AND PILI BAKARI v R (1992) TLR 10. ALHAl AYUB @ MSUMARI & ANOTHER v R Criminal Appeal No. 136 of 2009 (unreported) In the present case, and as rightly submitted by Mr. Kweka, although the charge sheet refers to a TV (HITACHI), this was hardly a sufficient description of the stolen property. The testimony of PW1 on this aspect did not improve the situation. He neither gave a detailed description of his stolen TV, particularly its serial numbers, nor produced .a receipt for its purchase before he tendered it as evidence. Although tt,e TV was accepted as a prosecution exhibit, the trial court admitted it contingent upon I "subsequent evidence on ownership".· This peculiar finding is found on 10 page 14 of the record. This in itself, is sufficient to create reasonable doubts on the proof of ownership of the TV allegedly stolen from PWl. However discrepant the second appellant's receipt (Exh DEI) over ownership of that same TV, it cannot strengthen or improve the weak prosecution evidence. With respect, it was wrong for the two courts below, to have used this weakness in the defence case to bolster the otherwise weak prosecution case. That amounted to shifting the burden of proof. We therefore agree that, in the circumstances of the present case, the doctrine of recent possession was wrongly invoked. The next point for determination is whether the cautioned statements (Exh PE3 collectively) were properly admitted. The position of the law is that a confession made to a police officer is admissible and may be proved against an accused person under section 27 (1) of the Tanzania Evidence Act Cap 6 RE 2002, if it is proved that it is voluntary and lawfully recorded under the provisions of the Criminal Procedure Act (See sections 46 - 58). The burden of proving that it was voluntary is on the prosecution (See section 27 (2) of the Evidence Act). If 11 the court is made to believe that the confession was obtained by threat, promise, or other prejudice held out by the said police officer to whom it was made, it would be held involuntary and inadmissible (See section 27 (3) of the Evidence Act. The procedure for admission of confession is governed by the Evidence Act and case law. Like any other documentary evidence whenever it is intended to introduce it in evidence, is should first be cleared for admission and be actually admitted before it can be read out (See ROBINSON MWANJISI AND THREE OTHERS v R Criminal Appeal No. 154 of 1994 (unreported) WALII AIBDALLAH KIBµTWA AND TWO OTHERS v R Criminal Appeal No. ''181 of 2006 (unreported). If an accused person does not object, the document is admitted and its contents read over. If no objection is made at that stage, an accused cannot be I heard in objection to its contents thereafter. If the accused person objects to the admission of a cautioned statement (confession) for whatever reason, the duty of the trial court is to stop the trial and conduct an inquiry, or a trial within tdal, to determine the point objected to. It is only after this procedure, that an objected I 12 ,, confessional statement may be admitted if found lawf1..Jlly recorded and voluntarily rendered. If not, the statement is rejected and that marks the ,, end of the story. On several occasions, this Court has held that failing to ' hold inquiries or trials within trials whenever such confessional statement 'I have been objected to, renders such, evidence to h;ve been wrongly I I admitted and acted upon (See MOHAMED ALLY & ANOTHER v R (1956) 29 KIR 166; MTIBA v R (1982) TLR 1~1; L. MAZAMBI v R (1991) TLR 200; MORIS AGUNGA AND 2 OTHERS v R Criminal Appeal No. 100 of 1955 (unreported) etc. In the present case, when PW4 was testifying,, he introduced the •: ' fact that he had "interviewed" all the appellants and thereupon prayed to I I tender their statements as exhibits. T;he drama that unfolded could only best be told by the record itself (page 24 - 26):- "PW4 ............... Generally...... i I did interview the 1st accused, Z1d accused, :rd accused and 4h accused person. Pray their statement to be admitted as exhibit. ', Court Said caution statement loudly read over accused persons ,, • 1st accused I object allegations that i was notified of my rights are not true. After all, I never recorded the statement .... Z'd accused I object for the following reasons. I directed that my relative be summoned but none was summoned. Moreover I was only compelled to sign the statement after torturing me. 3'd accused I object because the statement was recorded in the absence of relative of mine ... 4 th accused I object because I was not allowed to summon my relative. I was tortured in order to sign the statement Prosecutor. Your honor the objections raised are baseless. The statements are correctly recorded ... " It is after these proceedings that the trial court proceeded to give its decision overruling the objections, and thereafter proceeded to admit the four statements as Exhibit PE3 collectively. Significantly it may be noted that the statements were not only read over before admission, but also, 14 • the ruling was made without first making an inquiry which involves each party giving evidence, to justify or refute the points objected to, but particularly, it was incumbent at this stage, for the prosecution to prove that those confessional statements were not only made but voluntary in terms of section 27 (2) of the Evidence Act. What the prosecution said was not evidence, but a submission from the bar. They did not therefore discharge their burden of proof imposed by the law, particularly in respect of the serious allegations of torture raised by the accused persons. It was therefore wrong for the two courts below to have disregarded these basic requirements. Consequently all the cautioned statements of the appellants were admitted contrary to law and have to be discounted. But even if such cautioned statements has not been objected to, in view of the allegations and visible signs of torture on some of the appellants it was incumbent upon the two courts below to be more cautious in the evaluation of such evidence and should have given them no or very little weight (See STEPHEN JASON & OTHERS v R Criminal Appeal No. 790 of 1999 (unreported). 15 When the foundation of the three pieces of evidence of visual identification, recent possession, and cautioned statem'ents forming the bedrock of the appellants' convictions have been so shaken, we cannot see how the convictions can remain safe. weI accordingly allow the appeal. We quash the convictions and set aside the sentences. We order that the appellants be released from the prison forthwith, unless they are otherwise ' lawfully held. DATED at DAR ES SALAAM this: ......... day of March, 2014. JUSTICE OF APPEAL JUSTICE OF APPEAL JUSTICE OF APPEAL 1 16