20180219 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA . . f ... {CORAM: LUANDA, J.A.; MMILLA, J~A. And NDIKA, J.A.) CRIMINAL APPEAL NO. 344 OF 2013 ISMAIL SHABAN! ............ a ............................................. APPELLANT VERSUS THE REPUBLIC .......................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) {Mwambegele, J.) dated the 9 th day of September, 2013 in DC Criminal Appeal No. 36 of 2012 JUDGMENT OF THE COURT 5th & 20 th February, 2018 LUANDA, J.A.: On 30/1/2012 the District Court of Mpanda at Mpanda, convicted and sentenced the above named appellant to life imprisonment for raping Naomi Michael, a girl of 7 years of age. Aggrieved by the finding and sentence of the trial District Court, he unsuccessfully appealed to the High Court of Tanzania (Sumbawanga Registry). Undaunted, he has come to this Court on appeal. The prosecution case which was found credible by the courts below was that on 22/3/2011 about 19:00 hrs when Naomi was playing within the family 1 house-compound;-the-appellant-wh·o-wa-s-her neignoor and so sne Rnew nim ,_ very well, passed by while holding a bottle of beer .. T.he appellant dragged her to his room while covering her mouth with his hand. In the room, the appellant ordered her to undress which she complied with. She succumbed to the appellant's demand because she was threatened with a knife. The appellant also undressed himself and he then had sexual intercourse with her forcibly. On completion, the appellant gave her Tshs. 1,000/= and told her to remain in the room until all the people had left the place. Indeed, while this was taking place the grandmother of Naomi and other people were up and down tracing her. As luck would have it, Naomi coughed while in the room of the appellant. The search party rushed there only to find Naomi inside the room of the appellant. The search party did not waste time, they inspected her private parts and discovered that she had been raped. Naomi was rushed to hospital via Police. The medical practioner who attended Naomi one Alex Kwimba (PW4) saw bruises in the internal part of her vagina. He opined that the bruises must have been caused by a penis! Definitely, PW4 had gone beyond his parameters; he did not witness. Be that as it may, he tendered the PF3 as Exh. PL On the other hand the appellant denied to have committed the offence and somehow he put a defence of alibi. We say so because he did not come out very clearly. Since this is one of the grounds of appeal, we shall give details 2 at a later stage in this judgment. Suffices to say that the appellant denied to «~ .....-t1 • have commited the offence. The appellant who appeared in person in this appeal, had earlier on filed a memorandum of appeal containing six grounds which could be condensed into five grounds; First, that the voire dire test on Naomi was not properly conducted; Second, the evidence of the prosecution witnesses is not credible; Thirdly, the age of PW1 who was said to have been was 8 years was not proved at all; Fourthly, his defence was not considered and Fifthly, the. prosecution did not prove its case beyond reasonable doubt. Mr. Joseph Pande, learned Principal State Attorney who appeared for the respondent Republic supported the appeal on one major ground in that the trial court did not consider the defence of the appellant at all. He said failure to do so is a fatal irregularity which vitiates the entire proceedings. Even when he was told the first appellate court to have stepped in and considered the defence, he said that is not a cure as it offends S. 312 (1) of the Criminal Procedure Act, Cap. 20 R.E, 2002 (the CPA) which requires the judgment to incorporate both the prosecution case as well as the defence. He made reference to the decision of the Court in Hussein Idd V R, (1986) TLR 169. When he was probed further by the Court as to whether the voire dire test was properly done before the evidence of Naomi was taken, he said it was partially conducted and that her evidence should be taken as unsworn. He made 3 reference to Kimbute Otiniel V R, Criminal Appeal No. 300 of 2011 (CAT- Unreported). On the other hand, the appellant basing on the submission of Mr. Pande, prayed that he be released from prison as he is in prison for some considerable time. For convenience sake, we shall discuss the grounds of appeal in the following order; the 1st ground, 3rd ground, 4th ground, 2nd and 5th grounds together. We start with the first ground which is about voire dire. Pages 15 - 16 of the record shows how the test was conducted. We reproduce hereunder as follows:- "PROSECUTION OPEN TRIAL PW 1:- Naomi Michael Byrs. VOIRE DIRE TEST U/S 127 OF TANZANIA EVIDENCE ACT: Qn: What is your name? Ans: Naomi Michael 8 yrs Qn: Are you going to school? Ans: Yes/ Standard I. Qn: What is your religion? Ans: Christian Qn: Do you know God? Ans: Yes 4 Qn: What is sin? Ans: Bad Qn: Do you know to speak the truth? Ans: Yes. Court: She can testify. v It is not shown Naomi gave evidence on oath or because she was intelligent and understood the duty of speaking the truth. And she gave her evidence on 28/9/2011 while the case of Kimbute was yet to be decided. The decision of the case of Kimbute was handed down on 17/6/2014. So, the holding of the case of Kimbute therefore could not apply in this case. The position applicable then was before the decision of that case. In terms of S. 127 (2) and (5) of the Evidence Act Cap 6 RE 2002 (the EA) a child (14 years and below) could testify on oath or not on oath subject to conducting a competency test known in legal parlance as voire dire. How such test was conducted then? The procedure of conducting a voire dire came to limelight in Nyasani s/o Bichana V R, [1958] EA 90 the then Court of Appeal for Eastern African said ad follows:- "It is clearly the duty of the court under that section to ascertain first whether a child tendered as a witness understands the nature of oath, ancl, if the finding on this question is in the _negative, to satisfy itself that the child is possessed of 5 sufficient · intelligence to justify the reception of the evidence and understands the duty of speaking the truth. This is a condition precedent to the proper reception of unsworn evidence from a chi/cl and it should appear upon the face of the record that there has been a due compliance with the section. " [Emphasis supplied] (See also Kibangeny V R, [1959] EA 94; Dhahir Ally V R, [1989] TLR 27; Hassan Hatibu V R, Criminal Appeal No. 71 of 2002, and Khamis Samwel V R, Criminal appeal No. 320 of 2010 and Mohamed Sainyeye V R, Criminal Appeal No. 57 of 2010). In Mohamed Sainyeye, case (supra) a child of 10 years of age gave evidence without properly conducting the test of voire dire. The trial District Court conducted the test as follows:- ''PW Angela Benarcl 10, I am a pupil ad Ka/oleni, Std III Christian: Court: Do you know God PW2: He is on top (Mbinguni) Court: Do you know the truth PW2: I don't remember, but it is saying the truth not a false statement. 6 Court: Who is the head teacher. PW2:Kaaya Order: I am satisfy that an accused (Sic) is intelligent enough to testify before this court: The Court then said this:- "The above extract falls short of a voire dire. It is crystal clear that the trial court did not comply with the procedure ofconducting voire dire test. In the absence of an .inquiry and finding that the child understands the nature of an oath or he is possessed of sufficient intelligence and understands the duty of speaking the truth it cannot be said that the child was a competent witness. The evidence of PW2 is of no evidential value. Since the trial court did not comply with the mandatory provision of section 127(2) of the Evidence Act the evidence of PW2 was wrongly admitted and acted upon. The same is expunged from th record. And since the evidence ofPW2 is crucial in this case/ the conviction cannot stand.,✓ In the instant case, the trial court was satisfied that the voire dire test was conducted properly and so was the High Court on first appeal. The High Court said, we quote:- 7 /This is what transpired in court on 28/9/2011. I am satisfied as well that the voire dire examination conducted adequately established that Naomi Michael, the victim of rape aged eight years was not only of sufficient intelligence to Justify the reception of her evidence/ but also that she understood the difference between truth and false hood. // Then the High Court made the following observation, we reproduce:- "The evidence of Naomi Michael/ the victim, aged eight when testifying was quite convincing, focused and to the point. She did not testify under oath/ but on the basis of the voire dire examination I am positive ... // According to the case of Nyasani s/ o Bichana, (supra) a child of tender . age.is a competent witness to testify only when the trial court conducts a test of oath first. If tl1is fails, the Court has to conduct intelligence test. Now in order to establish whether the child knows the meaning of oath, the trial court is required to put questions pertaining to reHgious belief of the child and asking him the consequences of saying untrue story. If the witness understands the meaning of oath, the trial court to swear or affirm the witness and allow him for give evidence. In case he does not, then the trial court to conduct the second test by asking him questions to ascertain whether he is intelligent and understands the duty of speaking the truth. (see details in Sainyeye case) If 8 he does, then the child to give evidence without oath. If the witness does not pass neither of two tests, then the court should not take his evidence. In our case, the trial court put questions pertaining to both limbs namely oath and intelligence and lumped them together. Then the court said she can testify. The big question is how? Is it on oath or not on oath? With due respect to the learned judge who heard the first appeal, the voire dire test was not properly conducted at all. The evidence of Naomi therefore, was taken contrary to the dictates of S. 127 (2) of the Evidence Act. The same is expunged from the record. ;-'• We move to the age of the complainant whether she was 8 years of age. _ We wished to point out at the outset that this matter is being raised for the first time. The issue was neither challenged by way of cross-examination nor,Jaised in the High Court. Generally this Court will not consider a ground of appeal based on fact which has not been raised and canvassed in the lower· court. That said, this ground is devoid of merit. Coming to the appellant's defence to have not been considered in the judgment in the trial court. It is true the record shows that it was not considered at the trial level. But the High Court on first appeal considered it and found to have not shaken the prosecution case. It is the submission of Mr. Pande that the action of the High Court did not salvage the situation. The judgment in 9 terms of S. 312 (1) of the CPA is incurably defect for failure to consider the defence. He cited Hussein Iddi case (supra). In this case the appellant and another were charged with murder. Hussein Iddi was the 2nd accused. The other accused gave evidence of alibi. The trial learned judge in his judgment did not at all consider his defence. This Court on appeal said as follows:- ''It seems clear to us that the judge dealt with the prosecution evidence on its own and arrived at the conclusion that it was true and credible and as a result he rejected the alibi put forward as a i_,: deliberate lie. In our view this is a serious misdirection. The judge should have dealt with the prosecution and defence evidence and after analyising such evidence/ the judge should then reach a conclusion. Here Accused 1 was deprived of having his defence properly considered by the judge. In the circumstances we think - it is unsafe to let the conviction of accused 1 stand. F/ In this case, as we have-said ea~lier _c;m the Higb Court stepped into the shoes of the trial court and did the needful. The appellant defence was that on - 20/3/2011 he went to his shamba till 16.00 hrs. Then went to Kasimba Bridge with a container and took bath. On completion he met with two people whom they mistaken him with a person they knew. He was not. He quarreled with them and later went to a place called Magamba. He stayed there till 22/3/2011. 10 There he was taken to police on 28/3/2011 and eventually charged with the offence he did not commit. The High Court said the following, we reproduce:- "For the avoidance of doubt, I have taken into consideration the appellant's assertion to the effect that he has been framed. That all the evidence adduced by the prosecution against him has been cooked. I have also considered his alibi. With respect to the appellant, I am not able to go with him on these assertions. I do not find the two a/legations as plausible. At the trial these defences did not arise. No trace of them could be seen in defence and cross examination. He just stated that he was arrested by passersby and concentrated on discrediting the evidence of prosecution. " ; ' The question now is whether the higher court on appeal has or has no authority ~ to consider that evidence which was not considered dur,i~g the trial. In Desiderio Kawunyo vs Reginam [1953] 20 EACA 281 the trial High Court of Uganda did not write the judgment-in compliance with s. 169 (1) of the U9andan Criminal Procedure code,.-Cap. 2jLwhich is parimaJer/awith our S. 312 (1) of tl1e CPA. On appeal to the then Court- of Appeal . for ~astern . African the Court said thus:- ' . .. the defect in the judgment does not necessarily invalidate the conviction. The question in this case is 11 L whether we should order retrial or whether there is sufficient material on the record to enable us to consider the appeal on its merits and we have come to the conclusion that there is.'' In this case, on the material available the learned High Court judge considered the defence of the appellant vis-a-vis the prosecution and came to the conclusion that it does not shake the prosecution case. In the light of the holding in Desiderio case (supra) to which we subscribed fully, what the High Court has done is within its powers. This is because one of the functions of a higher court on appeal is to re-appraise the entire evidence on record with a view to seeing whether justice prevailed. In . Hus$ein case the Court neither considered nor discussed the option we have •· - jus_t explained in that the higher tourt can step" into the shoes of a lower court to entertain an appeal if there is sufficient material on the reco-rd to act. In view - . - _of the explanation we have given above, the· case· of Hussein (supra) is distinguishable. We are unable to agree with Mr. Pand'e: We now turn to grounds two and five together which are about credibility of prosecution witnesses and whether the prosecution had proved its case beyond reasonable doubt. Having expunged the evidence of Naomi the 12 question is whether there is cogent evidence on record on the prosecution side to ground conviction. Before we proceed further we wish to make the following observation. Generally true evidence of rape has to come from the victim (See Selemani Makumba V R, [2006] TLR 379). But that does not mean that conviction cannot be sustained without the evidence of the victim. The court can convict without the testimony of the victim of crime. (See Abdallah Elias V R, Criminal Appeal No. 115 of 2009; Haji Oman V R, Criminal Appeal No. 307 of 2009; Fuku Lusamila V R. Criminal Appeal No. 12 of 2014 and Issa Ramadhan V R. Criminal Appeal No. 409 of 2015). In Issa Ramadhani case (supra) for instance, the victim of rape did not testify at the trial because she was of unsound mind. On the material date the girl went.on missing. In the course of the search, the sea_rch party heard her crying_._ They went to the place where_ the cry was coming from. They found t_he - - _appellant in the act of raping t~~ girl. The court upheld the concurrent findings - of the lower courts. The Court cited ~he finding in Haji Omary case. In that case the Court held:- 'The law recognizes that there are instances where charges may by proved without victims of crimes testifying in court. Take murder for example where 13 the victims are deceased Senilit½ tender age or disease of the mind may prevent a victim from testifying in court (see S. 127 of the Evidence Act) but this does not mean that a charge cannot be proved in the absence of the victims' testimony. " Having those principles in mind, let us see whether in the absence of the victim's testimony there is strong evidence on the prosecution that Naomi was raped by the appellant. It is the prosecution case that when the search party were up and down searching for Naomi, Naomi coughed and so they entered in the room of the appellant. They saw her seated_ on _a bed. They immediately inspected her · private parts. One of those who inspected Naomi was PWS her grandmother. PWS confirmed that she was raped; though she did not give details. However,· when she was cross-examined by the appellant whether she saw sperms, she answered in the affirmative. That was done on 22/3/2011. - The following day - when she was examined by PW4 he said he saw bruises .which were deep in the vagina. This shows that an ~bject has penetrated in her vagina. Because_ PWS saw sperms and said the Naomi was raped and further she was found in the room of the appellant without any explanation, it is clear then that it was the appellant who penetrated his male organ into to Naomi's vagina. There is nothing on the record to doubt their credibility. We are satisfied, like the lower 14 courts, that the prosecution had established its case to the hilt. There was overwhelming evidence notwithstanding the absence of the evidence of Naomi. In fine, the appeal is devoid of any merit. The same is dismissed in its entirety. It is so ordered. DATED at MBEYA this 19th 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 15