20160229 TZHC Mwanza

IN THE HIGH.COURT O TANZANIA ATMWANZA ... CRIMINAL APPEAL NUMBER 185 OIF 2015 . . {Original Criminal-Case Number 703 Of 2015 ••-. ~-~- Betore.Mpaze Esq Resident Magistrate} .JOSl:Ptt BERNARD. MO NGO .. ··~ APPJELLANT VERSUS THE ·REPUBLIC .... ~ ...... RIESPONDENT JUDGMENT S.B.M.G. Matupa, J. Before the district court of Tarime, the appellant was charged with one .count of attempted robbery contrary. to section 287 of the Penal Code. When the cas~ was called up for pleading on the 25 th of November 2015 the ~ppellant pleaded guilty to the ch.a.rge. Then, there followed the routine reading of facts by the prosecutor. The following is what transpired. "Your.honour, it was ·on the 24 /11/20i5 at about 07:30 hrs the accused was at Mika village within 1 \ 'I C Rorya district Mara region while there he was a passenger in the motor vehicle with reg. no. MC745 ARB make SANLAG the same was riden by Magige Michael Roche. That when they arrived ·at Mika abruptly the accused started attacking the rider of motor cycle and threatened him by using razor blade so that he can rob a motor cycle. That the victim did shout in which a .lot of people went to help him, the citizens who went there manged to arrest the accused. . Thereafter police were called and arrived to the area of scene and interrogated the accused who introduced himself as Joseph Bernard Mongo aged 38yrs, Kurya residing at Sirarl The said motor cycle was taken to police together with accused and victim were· taken to Utegi Police station. Police with number G 8270 DC Nicholaus with OC CID did manage to arrive there at the area of the scene. Today the accused has been brought to this Court Today he has bf;!en brought to this court and when the charge have been read to him he pleaded guilty. That is all. Court: asked the accused if he admits the facts Accused reply: what have been narrated by the PP is correct.N A~er this_ long litany of facts_ the court proceeded to convict the appellant of the offence of robbery and sentenced him to . a mandatory . minimum sentence of fifteen yea rs. i Aggrieved with that decision, the appellant has appealed to this court on a petition of appeal that has raised five grounds. T~ese grounds car, be summarised into three. That he was insane at the time of plea as well as at the time it is alleged he committed the offence. Secondly, the p·lea ·is not free from ambiguity. Three, the sentence is excessive. · The appellant wa?· not represerited here on appea.1 as was before the Court below. He appeared in person. M/s Ajuaye Bilishanga learned Senior State Attorney represented the Republic. At the outset, the learned Senior State. Attor.ney did · not support the conviction basic.ally as· regards the second ground of appeal. She was of the vi.ew ·that the plea was not free from ambiguity. The ambiguity was so grave that it cast doubt as to whether it was unequivocal. She poir:,t~d as an example that the .facts as pleaded did not• contain a·n element ~:)f stealing .as when the appellant was 3 \= . ' ('"t,,,,. ', ', arrested he had not started to steal. She invited the court to the provisions of section 380 of the penal Code which defines vyhat amounts to attempts the following terms: "380- When a person, intends to commit an offence, starts to put his intention into execution by means adapted to its fulfilment, and manifests his intention into an overt act, but does not fulfil his intention into extent as to commit a crime he is deemed to commit an offence. " She contended that the facts as pleaded were short of demonstrating that the appellant actually intended to steal. To buttress her argument, she invited me to the . case of John Faya and The Republic cri. App. no 198 2007 C.A. (Mwanza Regfstry) which held that "... the failure by the trial court to explain and ask the appellant to plead to every ingredient of the charge has no doubt, occasioned a failure of justice and is incurable.. '' The on!y passage that was read to the appellant in relation to the confessed charge was "That when they arrived at Mika abruptly the accused started attacking the rider of motor cycle and threatened him by using razor blade so that he can rob a motor cycle. " . · 4 The learned Senor State Attorney has contended that the facts are short of demonstrating that the fight was motivated with stealing. I concur with her. There is nothing on record to show that hypotheses. The underlined phrase "so that he·can rob a motor cycle'' . in all fairness, this was a momentous fact that required to stand out and to be clearly explained to the appellant and to be separately pleaded upon, instead of it being hidden among the many irrelevant facts, where an unrepresented person of the class of the appellant is likely to be discerned from._I find the manner it was placed to be suspect. This is a clear case of embarrassment. If I may. add, the facts show. that what happened in the present case was a. fight between the passenger· and the. . . . rider of the motorcycle. It is also apparent that,. the pleaded fact that, the fight was for the purpose of stealing the motor ·cycle were not known to the dri_ver at the tjme ·s of the fight. This fact unfolded very late in the cause of the purported confession to the police. To make .matters worse is the amount of the facts that were put on the appellant. Most of them were irrelevant to the charge that was laid before him. Facts in relation to how he was arrested, the purported confession to the police, how he was arraigned just to mention a fe\:v were not called for. To add to the injury, here is a prosecutor who put the words on the mouth of the appellant, that he had pleaded guilty to· the charge. Definitely the appellant was bombarded with a litany of irrelevant facts, it is not apparent in relation to which of them was the admission .made. He was definitely embarrassed. It is even possible that, embarrassed as he was, the -appellant might be reciting facts he heard at the police. · In the. upshot, I will allow this appeal on the ground that the plea was u,::2quivocal. I will therefore quash the - 6 ~ •," I plea and the conviction thereon, and set aside the sentence. . I have considered the <;:ircumstances of this case, especially the absence of evidence · of the purported stealing, which fact happened to have been squeezed. I will therefore not make an order for a retrial. The appeHant shall be released from custody · unless he is 7 . ;:·, Date: 29.02.2016 Coram: Hon. S.B.M.G. Matupa, J Appellant: present Respondent: Hemed_ Halid Halfani B/C: Shida This case is set for judgment. We are set for the judgment. S.B.M.G. Matupa JUDGE 29.02.2016 Court: Judgment is read in chambers in the presence of the appellant and Mr Hemed Halid Halfani State Attorney this 29th . day of February 2016. (i{)v,,J:~J.J--:_ . . Stfi.ivt:cf.Matupa JUDGE ·8