20180216 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LUANDA, J.A.. MMILLA. J.A.. And NPIKA, J.A.^ CRIMINAL APPEAL NO. 600 OF 2015 SACKSON S/O LAITON SIMBEYE................................................. APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Chocha. J.^ dated the 31st day of March, 2015 in Criminal Sessions Case No. 16 of 2014 JUDGMENT OF THE COURT 12th & 19th February 2018 NPIKA, J.A.: Sackson s/o Laiton Simbeye, the appellant herein, and Juma Wenela Mwampashi were jointly and together charged with the offence of murder contrary to section 196 of the Penal Code, Cap. 16 of the Revised Edition of 2002 before the High Court of Tanzania sitting at Mbeya. It was alleged that on the 8th day of December, 2012 at Itale Village within Ileje District and Mbeya Region the appellant and the said Juma Wenela Mwampashi, jointly and together, murdered one Tyness d/o Msokwa ("the deceased"). While the said Juma Wenela Mwampashi was acquitted of the offence after the trial High Court ruled that there was no prima facie i case made out against him, the case against the appellant proceeded to its conclusion. In the result, the appellant was convicted of the offence charged. Accordingly, he was condemned to suffer death by hanging. Aggrieved, the appellant has lodged this appeal. The facts of the case are briefly as follows: on 8th December 2012 at night around 20.00 hours, the deceased arrived at her home accompanied by her three granddaughters, the oldest being PW1 Siwema Denmark, then 11 years old. They found two uninvited guests, one of whom PW1 identified, with the help of bright moonlight, as the appellant, apparently her kindergarten teacher. Although she did not identify the other "guest" she described his attire at the trial. Moments later the three children ran into a kitchen in their home on orders of the two men, who, then, contained and dragged the deceased behind the home. PW1 observed all that from the kitchen, about 15 paces from the scene of the vicious attack. For fear, the three young girls remained inside until the following morning when they got out to find the lifeless body of their grandmother with her left arm chopped off. PW1 immediately reported the killing to her uncle PW2 Samson Chikobeli Kayombo and mentioned the appellant as one of the two culprits. PW3 Amson Mwamahonje, a Hamlet Chairman, visited the scene of the crime and reported the matter to the police. According to him, PW1 had also named to him that the appellant was one of the two killers. PW4 G. 538 DC George, a police investigator, arrested the appellant on 24th March 2013 at Tunduma where he had taken refuge after fleeing his home right after the killing. He tendered in evidence the appellant's cautioned statement (Exhibit P.2) that he recorded in which he allegedly confessed to the murder. Although the appellant retracted the confession, the trial court ruled that it was voluntarily made. PW5 Juma Mtindya, who witnessed the interview of the appellant by PW4, affirmed the voluntariness of Exhibit P.2. Furthermore, PW4 tendered a cautioned statement of the said Juma Wenela Mwampashi (Exhibit P.3) showing that the said Juma Wenela Mwampashi also confessed to have been involved in the killing. A post­ mortem examination report (Exhibit P.4) that PW6 Anyimikisye Asulumenye Kibona from Itumba Ileje Government Hospital, a Medical Doctor, attributed the deceased's death to severe bleeding from a cut wound on the left hand. The appellant gave a sworn testimony in his defence without calling any witness. He generally denied any involvement in the killing and claimed that his cautioned statement was extracted by the police through severe torture. He supported his assertion by tendering two medical chits (Exhibits D.I.). As intimated earlier, the appellant's then co-accused, the said Juma Wenela Mwampashi, was acquitted by the trial High Court upon a finding of no case to answer. In his judgment, the learned trial Judge, agreeing with the three assessors' verdict of guilty, convicted the appellant of murder primarily on PWl's evidence that the appellant was positively identified at the scene of the crime as one of the two assailants. The Court also accepted PW4's evidence and Exhibit P.2 (the cautioned statement) that the appellant confessed to the murder. The appellant now challenges his conviction and sentence upon three main grounds: one, that voire dire examination on PW1, a child of tender age, was improperly conducted rendering her unsworn evidence unreliable; two, that PWl's evidence of identification was unreliable as it did not indicate the intensity of the light; and three, the appellant's cautioned statement could not found conviction. At the hearing before us, Mr. Victor Mkumbe, learned counsel, appeared for the appellant while Mr. Ofmedy Mtenga, learned State Attorney, represented the respondent Republic. At the very outset, the Court, suo motu, asked the parties whether the summing up of the case by the learned trial Judge to the assessors as rshown at page 73 of the record was adequate. For the sake of clarity, we reproduce the aforesaid record of the summing up as follows: "NOTES TO ASSESSORS' OPINIONS -Assessors' legal juris - section 298 (2), Criminal Procedure Act - Basis of conviction - Burden and standard of proof (prosecution) -Conviction not based on weakness - but on the strength -Offence's Constituents -Actus reus -Mens rea -Evidence -PWl's credibility -Light - enough -Effect of irregularities in PF3 -Statement - voluntary? -In view of the freshness, assessors to combine these notes with anything in their memories." In response, Mr. Mkumbe was forthright that the summing up was significantly deficient as he characterized as an outline without any details of the vital points of the trial. In effect, he said, the assessors were not guided sufficiently. Taking the view that this procedural infraction was incurable as it rendered the trial without the aid of assessors contrary to the dictates of section 265 of the Criminal Procedure Act, Cap. 20 of the Revised Edition of 2002, Mr. Mkumbe urged us to invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Edition of 2002 to nullify and quash the trial court's proceedings and judgment and set aside the capital sentence imposed on the appellant. He further urged that the appellant be retried before a new Judge and a new set of assessors. When asked by the Court on what ought to be the fate of the appellant's then co-accused, the said Juma Wenela Mwampashi, who, as already indicated, was set free upon the trial court finding no prima facie case against him, Mr. Mkumbe submitted that the said 5 co-accused ought to be retried along with the appellant as his acquittal cannot be saved following the entirety of the trial proceedings being rendered a nullity. On his part, Mr. Mtenga, despite initial slight hesitation, supported Mr. Mkumbe's position in whole. He urged that both the appellant and his then co­ accused be retried. It is trite that section 265 of Cap. 20 (supra) requires that all criminal trials before the High Court must be conducted with the aid of assessors whose number must be not less than two as the court may determine. After the case on both sides is closed, the provisions of section 298 (1) of Cap. 20 (supra) come into play, stating as follows: "When the case on both sides is dosed, the judge may sum up the evidence for the prosecution and the defence and shall then require each o f the assessors to state his opinion orally as to the case generally and as to any specific question o f fact addressed to him by the judge, and record the opinion. "[Emphasis added] Although it can be said that by using the word "may" the above provisions are not couched in mandatory terms, it is settled jurisprudence that it is prudent as a matter of practice for a trial Judge to sum up the case for assessors before taking their opinions. Indeed, in Khamis Nassoro Shomari v. SMZ [2005] TLR 228 where the issue was construction and effect of section 256 (1) of the Criminal Procedure 6 Decree, Cap. 14 of the Laws of Zanzibar which is similar to section 298 (1) of Cap. 20 (supra), this Court held, at page 231, that: "The wording o f the section is unambiguously dear where the operative word used is "may". However, we wish to point out at once that although it is not mandatory for the trialjudge to sum up the case to the assessors, as a matter o f long established practice, trialjudges sitting with assessors have invariably been summing up the cases to the assessors."[Emphasis added] The Court was mindful, at page 232, this long established practice: "... can be seen from a number o f decided cases by this court in Tanzania and elsewhere in East Africa by the Court o f Appeal for East Africa. In Tanzania Mainland, section 265 o f the Criminal Procedure Act 1985 (the Act) essentially provides in similar terms as section 256(1) o f the Decree, in Zanzibar." Having revisited its earlier decision in Hatibu Ghandi and Others v. Republic [1996] TLR 12 (on the same position that summing up is prudent as a matter of practice) and the decision of the erstwhile East African Court of Appeal in Washington s/o Odindo v. R, (1952) 21 EACA 392 (on the value of summing up), the Court concluded, at the same page 232, that: "In our view, to hold otherwise, would negate the import o f this very dear and mandatory provision o f the section. As correctly submitted by Lt. Col. Laizer, learned counsel for the appellant, it would otherwise make a mockery o f the provisions o f section 265 (1) o f the Act, if the 7 practice o f the court was different from what was stated in Hatibu Gandhi. "[Emphasis added] Accordingly, trial proceedings would be found to have been in contravention of the clear and long established practice of the court if there is no summing up of the case to the assessors and their opinion was not taken, or where the trial judge failed to direct the assessors properly in the summing up. See also John Mlay v. Republic, Criminal Appeal No. 216 of 2007; Jeremia Paskal Gabriel v. The Director of Public Prosecutions, Criminal Appeal No. 185 of 2010; and Mwita Marwa Morega @ Makala v The Republic, Criminal Appeal No. 353 of 2015 (all unreported). In Laurent Salu and Five Others v. The Republic, Criminal Appeal No. 176 of 1993 (unreported), the Court provided guidance on the participation of assessors in trials before the High Court. It was stressed, inter alia, that the summing up to assessors must contain a summary of evidence of the prosecution and defence as well as |he explanation of the vital points. Such vital points may include the relevant law applicable and possible defences. In Washington s/o Odindo (supra) 21 EACA 392, the erstwhile East African Court of Appeal underlined that: "The opinion o f assessors can be o f great value and assistance to a trial judge, but only if they fully understand the facts before them in relation to the relevant law. I f the law is not explained and attention not drawn to the salient facts o f the case, the value o f the assessors' opinion is correspondingly reduced." [Emphasis added] As it may be recalled, the learned trial Judge in the instant matter captured his "summing up to assessors" in what he called "Notes to Assessors' Opinions" spanning over half a page. The question before us, then, is whether these brief notes were of the kind that would have guided the assessors to arrive at a correct verdict. Having scrutinized the trial Judge's "brief notes", we agree with the learned counsel that the summing up was unmistakably inadequate. It is apparent to us that the notes are, in essence, a sketch of key points without any details or explanation. For example, while section 298 (2) of Cap. 20 (supra) is listed as the legal basis of the role of assessors, not even a single sentence is given to elaborate on that aspect. Although "burden of proof" and "standard of proof" are also listed, no description is given in the notes about those terms and their applicability or relevancy. No detail is on the record on what the learned trial Judge said on the ingredients of the offence of murder as may be applicable to the facts of the case. The record is mute on what was said, for example, on mens rea (malice aforethought) as may be applicable in the circumstances of the trial. We also find it significant that the "summing up notes" provided no summary of the prosecution and defence evidence. Recalling in particular that in this case the evidence of identification was critical to the determination of the criminal liability of the appellant, we expected the learned trial Judge to have canvassed key aspects of the weight and reliability of visual identification. It is evident that the skeleton summing up notes pointed out nothing on visual identification. We acknowledge, as the Court observed in John Mlay (supra), that summing up to assessors is a matter of style: it could be short and precise or lengthy and exhaustive. What is most important, whatever the style used, is that summing up must be adequate to assist the assessors to arrive at a correct verdict. In the instant matter, we are of the firm view that the purported summing up notes are too sketchy to have been of any help to the assessors. The notes were given in a cursory manner without regard that the appellant was on trial charged with the most serious offence of murder attracting capital punishment. They did not explain the law relating to murder and how the evidence adduced at the trial could be applied to that offence. Accordingly, we find that there was a mistrial and a consequential miscarriage of justice. We are constrained to find that the trial was a nullity in its entirety. On the way forward, we have thought over ordering a retrial in accordance with the principles set out in Fatehali Manji v Republic, [1966] EA 343. We agree with the submission by Mr. Mkumbe, which was supported by Mr. Mtenga, that it would be in interests of justice that the appellant be retried along with his then co­ accused as the entirety of the trial proceedings were rendered a nullity. In the final event, we invoke our revisional powers under section 4 (2) of Cap. 141 (supra) by which we nullify the entire proceedings of the trial High Court and 10 then quash the appellant's conviction and set aside the death sentence. For avoidance of doubt, the acquittal of the said Juma Wenela Mwampashi is similarly quashed. As a consequence, we order that the appellant and the said Juma Wenela Mwampashi be retried as expeditiously as possible before a different Judge and a new set of assessors. Meanwhile, the appellant shall remain in remand prison. DATED at MBEYA this 16th day of February 2018 B.M. LUANDA JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL G.A.M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. Bampikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL 11