20140616 TZCA Iringa

• Ii ''\} c;..s I IN THE COURT OF APPEAL OF TANZANIA .Xct-t"~ AT IRINGA CRIMINAL APPEAL NO. 301 OF 2009 (CORAM: MSOFFE, J.A., KAIJAGE, J.A., And MMILLA, J.A.) DAMIAN KINDOLE ···············•··············-•·w••·················lilil ■ ••····· APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa (Uzia, J.) th dated the 30 day of September, 2009 in (DC) Criminal Appeal No. 36 of 2009 JUDGMENT OF THE COURT 1t11 & 16th June, 2014 MSOFFE, J.A.: It is generally common ground that at the material time the Appellant .- . was a he~dsman at Ipamba Hospital which is owned by the Catholic Church Diocese of Iringa. At the same time PW3 Agnes Mbungu, a nurse at the Hospital, employed PW2 Faraja Ndiuka as her housemaid. Without the knowledge of PW3 the Appellant befriended PW2. On 10/11/2002 PW2 sneaked into the Appellant's house where the latter subjected her to sexual intercourse. According to PW2, that was not her first time to have sexual 1 ; . I intercourse wi_th the Appellant. They had sexual inter~ourse on several occasions prior to that date. On 13/11/2002 PW4 Dr.I Ntuma examined I . 11 PW2 and observed the smelling vaginal discharge af1d the hymen had · already been perforated for quite a longtime.// Upon arr~st and inquiry the appellant admitted the alleged sexual encounter save ~hat his contention ' I . I was that PW2 consented. Indeed, he .maintains that ~tance to date. In ' saying so, we are aware that in his oral submission b$fore us he denied : I ever having sexual intercourse with PW2. But, a~ best this is an · afterthought in the midst of the evidence on record a~d the fact that he has not canvassed this point in his mem:orandum of appka1. I I The Appellant's conviction for 1;ape and sente~ce of thirty years; I imprisonment by the District Court of Iringa (Biyereza, OM) which were' ! I I upheld by the High Court (Uzia, J. (R. I: P.)) were baseG:II on section 130 (1)', I I and (2) of the Penal Code which provide that consent is immaterial where' 1 I : the girl is under eighteen years of age., PW2 was 16 years I old at the time. ,; I I In his memorandum of appeal the Appellant ihas canvassed the 1 following grounds: 2 1. THAT, Your Hon. Justice, the trial magistratf and Hon. Judge erred in law the fact that preliminary hearing was not conducted at the trial Court and there ,s no record the memorandum of admitted and unadmitted fact by the appellant. 2. THAT, Your Hon. Justice the trial magistra!Je and Hon. Judge erred in law there was no any certificate produced before the ; Court to prove PW2 was under 18 age but the Court below rely only on a merely words of PW2 that she was 16 age. 3. THAT, Your Hon. Justice, the charge sheet against me i appellant states that the incident happened on 10/11/2000 but the case was started on 15/11/2002 thr= elapse of 2 years and 5 days was miscarriage ofJustice against I appellant. In this appeal the Appellant appeared in person, unrepresented. Understandably, being a layman he had nothing much to assist the Court. The respondent Republic had the services of Ms. Kasana Maziku, learned State Attorney, who argued in support of the appeal. The complaint in the first ground of appeal is that there was a failure of justice because no preliminary hearing was conducted. This, according to Ms. Kasana Maziku, offended the dictates of section 192 of the Criminal Procedure Act (CAP 20 R.E. 2002) (the Act). If we understood Ms. Kasana 3 / 1/1 Maziku correctly; and we think we did, she was of the view that if a preliminary hearing had been conducted the age of PW2 would have featured as a matter in dispute thereby giving the parties and the trial court the opportunity to address it adequately in the main trial. A look at the record will show that it is true that no preliminary hearing was conducted. This, no doubt offended the requirements under section 192 (1), (2), (3) and ( 4) of the Act on the legal obligation to conduct a preliminary hearing. In this respect, the trial District Magistrate is reminded that it is a requirement of the law to conduct a preliminary hearing before recording the evidence of witnesses. The issue is whether the proceedings in this case were vitiated by the failure to conduct a preliminary hearing. With respect, we do not think so. The spirit behind conducting a preliminary hearing is to expedite the trial and to minimize expenses. If so, we do not think that the spirit is defeated by the fact that a preliminary hearing was not conducted. Indeed, this point is best captured in this Court's decision in Kalist Clemence @ Kanyaga v. Republic, Criminal Appeal No. 19 of 2003 (unreported) wherein it was stated:- 4 I I I i Section 192 of the Criminal Procedure Act, iCap. 20 Revised Edition 2002 appears under Part ( c) of "Trial Generally." That Part has a heading - ''Accelerated Trial and Disposal of Cases." The obvious inference I is that Section 192 is intended to achieve the speeding up of criminal trials. Under the Section, one of the ways of speeding up a trial is that as soon as accused person I pleads not guilty to a charge the trial court should hold a hearing termed "preliminary hearing" during which matters which are undisputed will be identified so that I evidence to prove such matters will not unnecessary be called. That will mean that witnesses wil( not be summoned to prove that which is not disputed. That which is accepted as undisputed is taken by the trial court as proved In Peter Paul v. Republic, Criminal Appeal No. 238 ofi2008 (unreported) this Court cited Kanyaga (supra) and went on to state:- 1 At the end of the day this will shorten the trial ! period of the case and witnesses will be spared the inconvenience of travel to court on the hearing date. If the advantages of following the prescribed procedures i under Section 192 are not utilized this does. not mec1n that the trial proceedings are vitiated It wl1! mean that the prosecution will have to call and adduce evidence to I 5 '" ,:,,'t),._J _'7:'.Bf'lf'!1'. 1 '1 .-,\;,·;11:"{•j;:;;;,·. prove ~very material fact: (See: Joseph Munene and Another v. The, Republi~ (Criminal Appeal No. i 109 of 2002) unreported. From what has been stated above/ the failure to conduct a preliminary hearing in terms of Section 192 was an irregularity but it did not have the I effect of rendering the trial a nullity. I I Ms. Kasana Maziku cited to us this Court's decision in Mkombozi Rashid Nassoro v. Republic, Criminal Appeal No. 59 of 2003 I (unreported) on the need to conduct a p~eliminary hearing. With respect, I , I we agree with her that Mkombozi is reievant but only In relation to the I fact that conducting a preliminary hearing is a requirement of the law. I I Otherwise, we do not go along with her that the failurei to do so vitiates ' I proceedings. Indeed, Mkombozi is very clear on this ppint at page 9 of I I the judgment_See also Pazi Msemakweli v. Republic (1997) TLR 331 I I which was also cited in Mkombozi on the same point. Of course, we are aware that if there had been partial compliance I ' with section 192 as was the case in M7479 Sgt. Benjamin Holela v. Republic (1992) TLR 121 and Francis Lutambi v. Republic I (2000) TLR I 265, the proceedings would be vitiated. But, we haste~ to say that what 1 I would be vitiated would actually be the proceedings in relation to the 6 :.;~-{'•,.--.:;••.'.·_,,-:r,,·" ' , ' i • : ·~- •• i / partial conduct of the preliminary hearing and not the proceedings in the main trial. In conclusion on the above point, we wish to state that it has not been shown by Ms. Kasana Maziku that in this case the faHure to conduct a I preliminary hearing under section 192 either caused a delay in the trial or added to the costs of the trial. Furthermore, she has ndt shown whether the Appellant was prejudiced in any way by the said failure. This brings us to the complaint in the second ground of appeal and specifically the assertion by Ms. Kasana Maziku that if a preliminary hearing i had been conducted the age of PW2 would have been brpught to question. With respect, we fail to comprehend the essence of thi's contention. We say so for two main reasons:- I One, we understand and appreciate that in a case such as this one it is i important to ascertain the age of a victim because this is no doubt a serious offence which upon conviction attracts a sever~ sentence. We are also aware that ordinarily the age of a victim may be a~certained by direct 1. evidence as to the date of birth, by relatives, through medical examination or sometimes through facial appearance, etc. 7 _, J. ~:?7~'-~-~'.~~~:,~:r~~.- ,;n,J+.,.~.,. I<' '!-_Ii ·; Two, the issue of PW2's age did not feature at the trial. It arose for the first time in the. appeal to the High Cqurt. The Judge on first appeal ! i addressed it thus:- I On the issue of age, no one vitho can dispute that the girl was 16 years old becaus~ that was the ievidence tendered in court. I don t know where the age of 18 years came about . . . / I With respect, we are in total agreement! with the Judge. We will only add by way of emphasis that in more or le~s identical circumstances a similar issue was raised in Mkombozi and this .Court stated: I Regarding the appellant's complaint tha/ he was below 18 years of age at the time of the offence, we can I find no merit in this ground. The record quite clearly shows that that was the age recorded a,nd there is no indication of any complaint at the trial about it. . . As it is being raised;at this stage on second I appeal, it is nothing but an afterthopght, we reject it. [Emphasis added.] 8 ' i I I I I I As happened in Mkombozi, we too are of the view that t~e issue of PW2's I age being raised in the first and sec~nd appeals, a~ it were, was/is nothing but a clear afterthought. Indeed, without seemitlg to overstretch : I this point too much we will state that in the cha~ge sheet dated ! I 15/11/2002 it is clearly shown that PW2 was 16 years ol d. On the same 1 I date the charge, with PW2's age on it, was read over and explained to the . I Appellant after which he pleaded guilty. On 21/11/2002 he changed his plea but there is no indication from the record of proceedings of that date : I that he ever questioned the age of PW2. · PW2 testified on 30/1/2003 and . I . I stated that she was 16 years old. The Appellant was giv~n the opportunity I I to cross-examine her. He did not pose any question to hler about her age. I I As if that was not enough, the court in its wisdom asked PW2 as to when I exactly she was born, to which her response was that/ she was born in , I 1986. Our rough calculation shows that from 1986 tG 2002 when the I I offence was committed would be 16 or so years, to sugdest that PW2 was : I below 18 years of age at the time. Finally, in his pwn defence the ! I Appellant did not say anything about thE: age of PW2. tn the absence of I I any evidence to the contrary, there was/is no basis to doubt PW2 on her i age. Surely in the midst of all this, we too, like the Jud~e on first appeal, 9 I i wonder why this issue is still coming up; and the more so when it is being . I spearheaded by a State Attorney, as it were. If this wa~ a live issue there I is no reason why it was not taken up at the trial. After 911, given the above sequence of events in which there was all the o~portunity for the i Appellant, or anybody else for that matter, to raise it at the trial there is no ! guarantee that if a preliminary hearing had been cdnducted the issue , I would have been raised by anyone. In other words, it is not necessarily true or correct to assert without any fear of cont1adiction that if a preliminary hearing had been conducted the issue wo uld have definitely 1 i surfaced or featured. I i Like Ms. Kasana Maziku, we too did not at first urntlerstand the gist of II I the complaint in the third ground of appeal. At the hearing, the Appellant I told us that the essence of his complaint is that I the trial took an unnecessarily long period of time to bT completed. 9ur short answer to this complaint is that, that may well have been so. sJt the record before I us shows that he too contributed partly to the alleged delay because on I 23/12/2002 he was not in court. Nevertheless, he did not tell us whether 1 i he was in any way prejudiced by the alleged delay in [the disposal of the case. At any rate, the point is being raised for the first time in this appeal. 10 i It was not raised in the first appeal; so we do not have the benefit and I advantege of knowing the opinion of the High Court on the said point. I Nevertheless, this is yet again an afterthought, we reje~t it. Our judgment will not be complete without addr~ssing a point raised by Ms. Kasana Maziku, which to our mind, has a beari,ng on the complaint in the third ground of appeal. In her view, the trial commenced on 15/11/2002 and that when the certificate by the Regional Crimes Officer under section 225 (4) (a) of the Act was filed on 15/1/2003 it was already beyond the prescribed 60 days period by two clear days. With respect, we see no basis in this complaint. It is true that from 15/11/2002 to 15/1/2003 is a period of 62 days which is well beyond the period of 60 days prescribed by the above provision. But it is also true that this period includes Saturdays and Sundays which are not working days. If these days 1 are excluded it will be obvious that when the certificate was filed on 1 15/1/2003 it was not, strictly speaking, out of time. We are also aware that Ms. Kasana Maziku urged that the said certificate is nowhere to be I seen in the record - to suggest that it is quite possible that no certificate I was filed at all. Our answer to this point is that, this is a court of record I and we go by the record before us. The record, as per the proceedings of 11 • 15/1/2002, shoyVS that a certificate was filed. Henceforth, there is no reason for us to doubt the record of the court in this regard. At any rate, assuming Ms. Kasana Maziku had a valid complaint she has not stated whether the Appellant was prejudiced in any way by the fact that the certificate might have been filed beyond the stipulated period of 60 days. In fact, this Court's decision in Director of Public Prosecutions v. Fonja Mathayo ( 1995) TLR 23, is exactly on this same point that, much as it is necessary for the magistracy td be vigilant in the application of section 225 in order to ensure that accused persons really enjoy the protection which the provisions of that sectidn seek to accord them, breach of the said provisions does not necessarily vitiate the trial 1 unless it is shown that the accused person has been prejudiced in his defence or that the adjournments did affect the substance of the conduct of the trial. After all, it is pertinent to note here i that during the adjournments in the instant case the Appellant was out on bail; so the possibility of prejudice should not necessarily arise. When all is said and done, this appeal has no merit. I We hereby dismiss it. 12 4 DATED at IRINGA this 16th dat of June, 2014. I '! ! J. H. MSOFFE JUSTICE loF APPEAL s. s. LJAGE JUSTICE bF APPEAL ,I B. M. MMILLA JUSTICE OF APPEAL l i I certify that this is a true copy bt the original. I .l . " ' C Z. A. MAR:U A ··~' I DEPUTY REGISTRAR COURT OF APPEAL 13