20150929 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ATMBEYA DC CRIMINAL APPEAL NO.103 OF 2014 (From the Resident Magistrate Court of Mbeya, Original Criminal Case No.39 of 2014) SAMSON FREDRICK HELMAN ........................... ApPELL.ANT VERSUS THE JUDGMENT 21.07.2015 & 29.09.2015 10 CHOCHA, J. The appellant, Samson Fredrick Herman and 3 others were charged at the Resident Magistrate of Mbeya in Criminal Case No.39 of 2014 with 5 counts. The appellant and 3Id accused Rehema Moyo were jointly charged in the 1st and 2' counts Conspiracy to commit offence contrary to section 384 of the Penal Code and Stealing contrary to section 258 (1) and 265 of the Penal Code respectively. In the 3rd count the appellant, 2Iid accused persOn, Emmanuel Abraham Kalinga and Y d accused person, Rehema Moyo were jointly charged with the offence of stealing contrary to section 258 (1) and 265 of the Penal Code Cap 16 Revised Edition 2002. In the 4 th RON 11 count the appellant, 3" accused person, Rehema Moyo and 4th accused person, Finias Andson Mwashitete were again jointly charged with the offence of Stealing contrary to sections 258 (1) and 265 of the Penal Code and in the 5th count the appellant was alone charged with the offence of Malicious damage to property contrary to section 326 (1) of the Penal Code Cap 16. The appellant remained standing alone in the alternative 6th count, where he stands charged with stealing by servant contrary to section 271 of the Penal Code. The 7th count is for the appellant and 2 nd accused person, Emmanuel Abraham Kalinga. It involves receiving property unlawfully obtained contrary to section 311 of the Penal Code. Similar charges constitute 8th count for the 4th accused person, Finias Andson Mwashitete. The 1 accused person/appellant was convicted and sentenced to seven years imprisonment for each count following his plea of guilty. The sentences were to run concurrently against the appellant. The remaining accused persons were freed. The appellant was not satisfied with the decision of the trial court and lodged this appeal. The prosecution's case was that the appellant and other three accused namely Emmanuel Abraham Kalinga (2' accused), Rehema Moyo (3rd accused) and Finias Mwashitete (4th accused) were charged in 8 counts with various offences. It is alleged on various dates of 2013 indicated in the counts the appellant and his co-accused person within the City and Region of Mbeya committed various offences as hereinabove restated. The appellant and his co-accuseds were arrested and taken to court. The results were as translated. TS In his appeal, the appellant filed a petition containing five grounds. Closely scrutinized, they boil down into three as summarized hereunder, That, the trial magistrate erred by convicting him on his equivocal plea. That, the sentence was excessive. That, the charge against him was not proved beyond reasonable doubt. During the hearing the appellant featured in person and unrepresented. Ms. Juliana, learned State Attorney represented respondent/Republic. I0 The appellant began his story by completely exonerating himself with the commission of any offence he stood charged with. The Respondent through Ms Juliana - State Attorney strongly resisted the appeal for being an afterthought. She submitted that conviction was based on an unequivocal plea of guilt. Relying on both the provisions of s. 360 of the Criminal Procedure Act and the holding in the case of KHALID ATHUMAN V.R. [2006] TLR 79 to which this court has no quarrel, she submitted that the appellant was prohibited from raising an appeal against conviction based on a plea of guilty, save for the sentence. On sentence, the learned respondent simply said that it was statutory one set by law, in terms of s. 265 of the Penal Code Cap 16 Revised Edition 2002. 7-6 From the parties' dialogue the issue to address is whether or not the accused's plea amounted to a plea of guilt within the context analysed in the case of KENETH MANDA V.R (1993) TLR 107 where it was said:- '.4n accused person can only be convicted on his own plea of guilty if it is ascertained that he has accepted as correct facts which constitute the ingredients of the offence charged." Before confining my remarks deep, let me say something about the appellant's conduct and how the prosecution was trapped. When he decided to change his plea switching from a plea of not 1 0 guilty to a plea of guilty, he had a specific intention which he disclosed later. He desired to rescue his wife. The plan worked. His wife was indeed discharged. Having fully participated in a seemingly tricky plan engineered by the appellant, whose motive either the prosecution did not discover early enough, or discovered but acquiesced, it is a self defeating argument to claim that although the appellant and the 3rd accused were spouces each had a separate charge. If that was the position, the prosecution would not set the 3rd accused free. Perhaps, after "rescuing " his wife, the appellant did not anticipate the consequences on his side. He ended up with conviction and custodial sentence which he is now bitterly challenging. The appellant is playing his cards to free himself. Unfortunately the "modus operandi"he is adopting is not legally friendly. Once the accused had decided to sacrifice himself for his wife's survival he ought to prepare himself for whatever /-W 17 ~- consequences. Without prejudice to other religions, Christians believe that Jesus sacrificed himself to death for his believers. That may sound difficult for a non believer. I am not sure if the appellant may accommodate that. However from the particulars I learn that the appellant is a Masai, a famous tribe, in livestock keeping and I believe the example I will illustrate is more comprehensible to him than a religious belief centric. Once a herd man sales his livestock, he does not go back to the buyer and ask for the horns or skin. Once sold the livestock becomes the buyer's property wholesale. I will now revert to the merits. The effect of a plea of guilt is provided for u/s 360 (1) of the Criminal 10 Procedure Act. As already noted, no appeal against conviction based on a plea of guilt may be entertained. When the charge is read over to the accused the law affords him options. He may admit, deny or simply remain mute. However with the later, the accused is deemed to have denied the charge. These are the only options open to the accused. He cannot enter both pleas at a time. The court shall then decide the way forward depending on the accused's choice of plea. What transpired during the trial is not a new procedure. The procedure exists under the law as is clearly provided under section 194 (1) of the Criminal Procedure Act, Cap 20 Revised Edition 2002 thus:- "1) Where an accused person charged with a non warrant offence, other than an offence punishable with death or fife imprisonment, intends to plead guilty to the charge and desires to have his case W~- disposed at once he may give a written notice to that effect to the magistrate before whom the case is to be heard, and it shall be lawful for the magistrate to seive the person with a formal charge and a notice to appear, not less than four clear days, before the magistrate for the purpose of pleading to the charge and final disposition of the case." It is provided, erroneously I believe under subsection 2, that once the accused pleads guilty to the charge, the magistrate shall deal with the case in the like manner as the case where the accused pleads guilty u/s 229. The error referenced is with regard to the provision cited. The proper provision is supposed to be section 228 of the Criminal Procedure Act. It is the one governing the procedure of a plea of guilty. As clearly seen, section 194 (1) (supra) provides duties and or obligations which both the accused and the magistrate should observe. A requirement to serve a person with a formal charge and a notice, not less than four clear days has its connotation. Admittedly, the prior service with sufficient long time enables the accused to understand properly the nature of the offence which he is offering a plea of guilty. That did not happen, no wonder which is why on the 25th August 2014 when he had been given the opportunity which he had requested, on reading the charge to him he answered:- T did not steal the fuel but I got an accident" 77 In any case the accused's reply was far from amounting to the anticipated plea of guilt. That resulted in an adjournment of the case to the following day when the accused is on record admitting the charges read to him. Assuming the procedure set out u/s 194 (1) (supra) was properly observed, the effect of the provision of section 228 (supra) was to halt the trial and withdraw all the exhibits previously produced such that in the event they are still required, they may be re-produced. It was unprocedural in this matter for the trial court to maintain the list of exhibits produced during the trial. It happened that during the facts the exhibits t were named or marked after the ones tendered during the trial. That was not proper. After halting the trial there were no more exhibits in existence. The exhibits previously tendered fade away along with the proceedings halted. If the prosecution was still desirous to use the same exhibits subsequently, it ought to tender them afresh. The trial court erroneously relied on Exhibits P 1-5 tendered during the trial. Unfortunately the said exhibits were no longer. They were of no effect to subsequent proceedings unless re-tendered. The prosecutor ought to remember that the appellant had been charged with six counts. The later (sixth) was in the alternative. In view O of the position taken by the appellant, namely pleading guilt, an alternative count was no longer relevant. So, only five counts remained standing. On the 26th August 2014 when the appellant had requested to be reminded the charges with an offer to plead guilty, the prosecutor reminded him MM charges from 2nd - 5th counts inclusively He purportedly pleaded guilty and was accordingly convicted and sentenced. It is not stated anywhere in the proceedings what happened to the charges constituting the V t count. Finally, on the 3d September 2014 the trial court conducted a very short session without the accused. Ms Prosista - State Attorney had the following submission:- "In this case the 2" and 4th accused were found with fuel diesel which is the property of the complainant and we intended to produce them during the hearing of this case, because the Is t accused had pleaded guilt to the counts, we do pray for the court order to release the fuel and be handed over to the complainant because the 2'°' and 4m accused's denied to be owners of the same " The State Attorney's prayer was very quickly granted. The court ordered the return of an unspecified quantity of fuel to the complainant Ukodi International Ltd. It is not clear under what law did the learned magistrate exercise powers to make orders for an application conspicuously erroneously placed Lj before him. The disposal of exhibits is regulated by section 353 (1) - (6) of the CPA Cap 20, Revised Edition 2002. It In any case, except under circumstances where the exhibit is subject to speedy and natural decay and cannot be exhibited to court without inconveniences, the court shall not make an order for the disposal of the exhibit which it is not in the first place, possessed. The 3td September court's proceedings escalate the confusion. Firstly that there was still an important exhibit with an unspecified quantity, which was neither mentioned during the facts nor tendered in court as an exhibit. Secondly and more serious, where was that fuel still kept in view of the fact that the tanker was damaged? How much fuel then was stolen and how much was left out? All irregularities considered, we cannot safely say t o the facts were exhaustively drawn and compiled to afford the appellant fare and appropriate plea. In view of the nature of the offences I direct a retrial before another magistrate of a competent jurisdiction. To give way to an effective retrial all previous proceedings are quashed. The appellant to remain in custody as a remand prisoner pending further directions. Ordered accordingly. N. Judge IPLO 22.09.2015 Date: 29.09.2015 Coram: N.P.Z. Chocha, 3. Appellant: Present. ResDondent: Ofmedy Mtenga - State Attorney. 1/Ass: Anna R/A: Gaudensia. Court: Judgment delivered. Order: Right of Appeal Explained. -, N.P.Z. Ca Judge 4 29.09.2015 - - ---. '\