20160226 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: MBAROUK, J.A., LUANDA, J.A. And MUSSA, J.A.) CRIMINAL APPEAL NO. 522 OF 2015 DANIEL PETRO •••••••••..•••••••.••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Maghimbi, J.) Dated the 6 th day of January, 2015 In Criminal Appeal No. 98 of 2014 JUDGMENT OF THE COURT 24th & 26th February, 2016. MUSSA, J.A.: In the District Court of Karatu, the appellant along with six others were arraigned upon an indictment which was comprised of three counts, namely, shop breaking, stealing and possession of suspect properties, respectively, contrary to sections 296, 265 and 312 of the Penal Code, Chapter 16 of the Revised Laws. Throughout the tri"al proceedings, the appellant stood as the first accused, whereas his co-accused persons were Robert Lucas, Eva Isack, 1 Boti Dafay, Martine Joseph @ Hasawu, Stephano Dawi @ Sefu and John Masay who were, respectively, the second to seventh accused persons. It may, perhaps, be pertinent to observe at this stage that, whereas the first two counts were drawn against all accused persons, the third count was arraigned as against the third and fourth accused persons only. All accused persons denied the charge, whereupon the prosecution lined up four witnesses plus nine pieces of vitenge and six documentary exhibits before resting their case. In reply, the appellant and his co-accused persons testified on oath and, in their respective testimonies~ all of them refuted the prosecution claim. On the whole of the evidence, the trial court found insufficient material to implicate· all the appellant's co-accused persons who were, in the resvlt,. found not guilty . and acquitted. As regards the appellant,. the trial court was satisfied that the evidence, more particularly, his own cautioned statement, sufficiently implicated him. In the upshot, the appellant was found guilty, convicted and handed down a sentence of five years imprisonment for each count. The respective prison terms were, nonetheless, ordered to run concurrently. On appeal, the High Court 2 I'\ (Maghimbi, J.) found no valid cause to vary the trial court's verdict and the appeal was, accordingly, dismissed in its entirety. Still aggrieved, the appellan~ presently seeks to impugn the decision of the first appellate court upon a memorandum comprised of three points of grievance. We shall, at a later stage, recite the issues of contention raised by the appellant but, in the meantime, it is necessary to briefly explore the factual background giving rise to the arrest, arraignment and the ultimate conviction of the appellant. During the trial, the prosecution version was to the effect that on the 11 th April 2013, at Karatu Township, _the appellant and the co-accused persons broke, entered and stole several items from the shop belonging to Cecilia August Shayo (PWl}. In her testimony, PW1 told the trial court that, . . bn the fateful day~ she--was operating business at her shop- up-until when she closed it and handed over the shop keys to the security guard. The witness did not, however, disclose the time when she knocked off from her - - business, just as she -~id not also reveal the name of the security guard. When she reported for duty on the next day, PW1 found her shop broken and, upon entrance, she realized that several items had been stolen. The 3 . stolen items were 80 pieces of vitenge (make wax); 34 pieces of suiting material, 13 pieces of mitandio; 12 pieces of batikf, 24 pieces of vitenge (other than wax) and; 16 pieces of khanga. Soon after, PWl reported the incident to the police but, once again ·and, rather strangely, the lady did not give the slightest of a hint on whereabouts of her security guard. In the meantime, a good deal later, on the ih ·May, 2013 Detective Sergeant Vendelinus (PW3) arrested the appellant for involvement in · another shop breaking occurrence- but, upon being interviewed, he was said to have confessed complicity in the shop breaking incident giving rise to the matter at hand. The sergeant recorded a self-inculpating cautioned statement of the appellant which was adduced into evidence without . . demur (exhibit P4). In the cautioned statement, the appellant also implicated. the .co-accused persons, save . for the second accused . whom he did not mention. His revealations led the law enforcers to the house of the third accused person (Eva Isaack) where a thorough search was conducted and nine pieces of vitenge were retrieved (exhibit Pl). In the course of her testimony, PWl made a bland claim that the retrieved pieces of vitenge were amongst those stolen from her shop. Thus, against the foregoing backdrop, the appellant was, accordingly, arraigned and that concludes 4 the prosecution version unfolded during the trial, so far as the same is relevant and relates to the issues of contention in this appeal. As hinted upon, the appellant and the co-accused persons refuted the prosecution accusation upon sworn evidence. The appellant, in particular, did not quite dispute the prosecution detail about being arrested on the 7th May, 2013. Only, according to him, the arrest was for no lawful cause at all, as he was not involved in the breaking and stealing occurrence. The appellant deplored the prosecution for not featuring the security guard and, on that score, he contended that alleged occurrence was a sheer prosecution fabrication. We have already intimated that the co-accused persons also similarly refuted the case for the prosecution but, to the extent that their telling had no bearing on the appellant's case, we need not delve on the particulars of their respective testimonies. When all is said with respect to the background of the matter, it is now opportune to recite the memorandum of appeal which complains of:- "1. That, the first appellate judge erred in law . ' and in fact when she ignored her legal duty to scrutinize and evaluate the s purported cautioned statement of the appellant and satisfy herself as to whether such statement was made in accordance with the provision of section 57 of the CPA Cap.. 20 R.E 2002 or whether the said statement was violative of the said section cited herein above. 2. That, the prosecution -cid not prove their case beyond reasonable doubt as required by the law. 3. That, the first appellate judge erred in law and in fact in not finding that the purported cautioned statement was recorded outside the period stipulated · under section 50 of the CPA Cap. 20 R.E 2002." At the hearing before us, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Ms 6 ' Eliainenyi Njiro, learned Senior State Attorney. The appellant fully adopted the memorandum of appeal and, in his brief elaboration, he informed us that whereas the first ground of appeal is geared to criticize the cautioned statement for non-compliance with the question and answer mode prescribed by section 57 of the CPA; the third ground seeks to discount the c~ution statement on account of being recorded outside the period prescribed under section 50 of the CPA. In his reference to "the CPA", we understood the appellant to refer to the Criminal Procedure Act, Chapter 20 of the Revised Laws.· We shall, henceforth, adopt and similarly go by the abbreviation. In her reply, the learned Senior State Attorney expressed from the I ·! very outset that she was supporting the· appeal. To begin with, she, . nonetheless, faulted the appellant's ground No. 1 by contending that it is not quite the law that a caution statement should exclusively be recorded, in the question and answer mode. On the contrary, she submitted, a caution statement may result from a wholly volunteered and unsolicited telling .by a suspect. To support the latter conten~ion, Ms. Njiro referred us to Criminal Appeal No. 5 of 2004 - Ramadhani Salum Vs The Republic (unreported). But, the learned State Attorney conceded to ground No. 3 of - 7 • , the memorandum of appeal to the effect that the cautioned statement was recorded outside the four hours prescribed by section 50 (1) (a) of the CPA. In the result, she said, the document should be expunged from the record of the evidence. Ms. Njiro quickly rejoined that, having expunged the cautioned statement, the remaining · evidence would not suffice to sustain the conviction, the more so as it is comprised of the retrieved pieces of vitenge . which were insufficiently identified by PWl. That being the position, the learned Senior State Attorney urged us to allow the appeal, quash the conviction, set aside the sentence and release the appellant from prison custody. Having heard Ms. Njiro submitting in support of his appeal, the appellant fully supported her and had nothing to add in rejoinder. - Ahead of our c0nsideration of the concurrent positions taken. by the parties, we feel we should preface our consideration and determination of this appeal with an observation that the memorandum of appeal which, incidentally, was the appellant's own making, is commendably outstanding when compared with the majority of prisoner made memoranda which have come to our attention. To say the least, the one at hand was 8 . . remarkably short and focused and, if we may add, the appellant's elaboration of it was just as refined and concise. Addressing now t~e points of contention, we propose to be~in with ground No. 3. From the available evidence, it cannot be doubted that the appellant was, indeed, arrested on the 7th May, 2013. Equally undisputed, is the fact that the appellant's cautioned statement was recorded by PW3 on the 10th May, 2013 which turns out to be three days after his arrest. I The relevant provisions pertaining to the time available for interviewing 1 ! l suspects are contained in sections 50 and 51 of the CPA. Section 50 (1) stipulates as follows:- "For the purpose of this AcC the period available for interviewing a person who is in restraint in respect of an offence is - (a) subject to paragraph (b)✓ the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he 9 was taken under restraint in respect of the offence; (b) · if the basic period available for interviewing the person is extended under section 51, the basic period. as so extended. "[Emphasis supplied]. The foregoing extracted section is supplemented by section 51 (1) which makes provision for extensions thus:- "Where a person is irJ lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer - in .· charge -of investigating the offence, ,, for:,, . reasonable cause, that it is necessary that the person be further interviewed, he may- (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or 10 ... (b) either before the expiration of the original period, or that of the extended period, make application to a magistrate for a further extension of that period. " In the instant case, we are of tt:le settled view that the cautioned statement which was recorded outside the prescribed time without extension was improperly adduced into evidence and, for that reason, the same should be expunged from the record. Similar views have been expressed upon. numerous decisions of this Court in, for instance, Criminal Appeal No. 40 of 1999 - Tumaini Motel @ John Walker and Others Vs The Republic; Criminal Appeal No. 95 of 2005 - Janta Joseph Komba and Three others Vs The Republic; Criminal .Appeal No. -9 of 2007 -:- Michael Mathias Vs The Republic; Criminal Appeal No 101 of 2008 - Iddi Muhidiit @ Kibata'mo Vs The Republic; and Criminal Appeal- No;·"· · 205 of 2010 - Salum Said Kanduru Vs The Republic (All unreported). Having expunged the cautioned statement from the record ·of the evidence, needles for us to belabor on ground No. 1 which, in essence, seeks to challenge the mode of recording the statement. We should now address the issue -of the sufficiency and reliability. of the remaining 11 . evidence which is comprised in the nine pieces of vitenge allegedly retrieved from the home of the third accused person. The discovery of those pieces of vitenge weighed heavily in the minds of both the learned _ convicting Magistrate and the first appellate Judge. More particularly, the latter positively relied o~ the evidence in the following words:- 11/ have observed that it is due to the appellant's statement at the police that they managed to discover some of the stolen property from accused No. 4 (sic). Even if the Court had to reject the statement, the statement of the appellant at the police would still have been relevant as it led to the discovery of the stoleo property. " -- With:· respect, for the discovered items -to -b_~.,,,so deduced as stolen properties, there ought to have been sufficient evidence of identification. As hinted upon, in the matter under our consideration, the alleged owner (PW1) merely made a bland claim that the pieces of vitenge were hers without giving distinctive marks. On such evidence, it is our view that it cannot be said that ·the items were satisfactorily identified and linked to those stolen from the shop. 12 To this end, we do not think that the prosecution sufficiently discharged its burden of proving the case beyond all reasonable doubt. We, accordingly, allow the appeal, quash the conviction and set aside the sentence. The appellant should be released from prison custody forthwith unless if he is otherwise lawfully detained. DATED at ARUSHA this 26th day of February, 2016. M.S.MBAROUK JUSTICE OF APPEAL B.M. LUANDA JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. IZU PUTY REGISTRAR COURT OF APPEAL 13