fulugensi saimon vs republic 2018 tzhc 2873 9 july 2018

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM DISTRICT REGISTRY CRIMINAL APPEAL NO. 20 OF 2018 FULUGENSI SAIMON.................................... APPELLANT VERSUS REPUBLIC..................................................... REPUBLIC JUDGMENT 28/6/2018 & 9/7/2018 I.P.KITUSIJ Before the District Court of Morogoro at Morogoro, the appellant Fulgence Simon was charged with Unnatural Offence Contrary to Section 154(1) of the Penal Code, and in the second court, he was charged with causing grevious harm contrary to section 225 of the Penal Code 16. It was alleged in respect of the first count that between April 2014 and January 2017 at Msamvu area, Mwembesongo Ward within Morogoro District the appellant had carnal knowledge of one Simon Peter, aged 11 years, against the order of nature. With regard to the second count that on 2 February 2017 at Msamvu area Mwembesongo Ward Morogoro District the appellant willfully and unlawfully injured Simon Peter by beating him on different parts of the body with slashes and caused him grievous harm. The third count was spreading of HIV contrary to section 47 of HIV and AIDS (Prevention i and Control) Act Cap 28 of 2008 which alleged that the appellant unlawfully and intentionally transmitted HIV to Simon Peter The trial Court (Hon Mkhoi, RM) convicted him for both and sentenced the appellant to 30 years imprisonment for the alleged unnatural offence and five years for the grevious harm. This appeal seeks to challenge both the convictions and sentences. Before considering the present appeal and the grounds thereof, I shall refer to the evidence that was before the trial court. The star witness for the prosecution was Simon Peter Mwakang'wali (PW1) who after a Voir dire test satisfied the trial court that he knew the duty of telling the truth and testified on oath. At the time of giving evidence Pwl said he was eleven (11) years old. Pwl stated that before 2014 he was living with his parent in Sumbawanga but during that year he left in the company of a woman who told him she was going to visit her grandmother in Tanga Region. It is neither clear nor relevant as to the arrangement between Pwl and the woman who travelled with him but on reaching Msamvu Bus Stand in Morogoro the woman dumped Pwl by pretending that she was going to get food for the two of them. Thus Pwl became homeless with no one to turn to for assistance. Since he had no shelter Pwl improvised and turned small business stals used for selling food known as chips, into place to sleep at night. He joined another homeless boy known as Hassan and the two of them would work in the market place during the day and sleep at the usual makeshift shelter. 2 Life went on like that until one day Pwl ran into the appellant. The latter asked Pwl as to his place of residence but he told him he had none. The appellant who was working as a night watchman of an unoccupied house of one Mzee Moshi invited Pwl to the house. Pwl accepted the invitation and moved in to join the appellant in the house which had several rooms with mattresses. The appellant would sleep with Pwl at night during which he would smear body oil on the boy's anus to lubricate it before he would insert his penis. This went on every night for so long until in 2016 when Pwl escaped. However the appellant traced and found Pwl and brought the boy back. On another occasion the appellant accused Pwl of stealing money from him and he administered punishment to him by using a grass cutter. A certain woman among those who run unregistered restaurants (Mama Ntilie) saw Pwl being assaulted by the appellant, so she recruited intervention of other people who gathered around Pwl and the appellant. One Aziz Kipande (Pw4) a commander of Community Policing of that area was passing by at the scene and he saw the group of people surrounding the appellant and Pwl. When he moved closer he heard Pwl accuse the appellant of assaulting and abusing him sexually. The appellant was arrested and handed over to the police. At the police it was WP 4870 CPL Mwanaidi (Pw3) who was assigned to handle the case. She issued a Pf3 for Pwl and took him to hospital on 2 February 2017 where a Dr. Clement Rubaya (Pw2) conducted medical examinations on the boy (Pwl). Pw2 observed a 3 loose anal tract as well as diminishing ability to control passing of faeces. In addition to that, the victim tested HIV positive too which prompted Pw2 to conduct tests on the appellant as well. The appellant's results proved that he was HIV infected too. The PF3 showing Pw2's findings on PW1 was admitted as Exhibit Pl while that of the appellant was admitted as Exhibit P2. Pw2's tests did not detect any sperms in Pwl's anus and when this question was put to him during cross - examinations he stated that absence of sperms does not necessarily mean that there was no intercourse. The appellant was a lone witness for defence, during which he denied assaulting and sodomizing Pwl. The appellant's story instead was that on 2 February 2017 he left his sentry and residence and went out to work for someone Mkundi. On his way back he met a woman known as Mama Teddy who asked him of why he had assaulted Pwl. As he was arguing with Mama Teddy two other people who had their own axe to grind with the appellant turned up and supported the said Mama Teddy in accusing him. They arrested the appellant and took him to police. The appellant further said there was bad blood between him and Mama Teddy too who went out of her way and tortured Pwl to raise allegations of sodomy against him. To the appellant, the fact that Pwl has never disclosed the sodomy to anyone is an indication that he was never sodomized. He denied living with Pwl but admitted 4 seeing him work for Mama Teddy. He concluded by saying that being tested HIV positive is not conclusive proof that he is the one who transmitted it to Pwl. The learned trail Resident Magistrate accepted Pwl's story that he was sodomized and assaulted by the appellant. She treated the evidence of Pw2 as expert opinion which sank the appellant's boat. However as regards the third count, the court took the view that there was no evidence that the appellant intentionally transmitted HIV to Pwl. It cited the case of Republic V. Kerstin Cameron [2003]T..L.P 84 and concluded that conviction may only proceed from the strength of the prosecution case and not the weakness of the defence. Finally the appellant was found not guilty of the third count whereas he was found guilty and convicted of the first two counts. The appellant instituted this appeal by presenting a Petition of Appeal that cited Rape under section 130(1) and 131(1) (2) (e) of the Penal Code as the offence with which he had been charged and convicted. Subsequent to that he filed an Amended Petition of Appeal presumably to rectify the error in the original Petition of Appeal but this was registered under a different number as Criminal Appeal No. 94 of 2018. The latter appeal was placed before Hon. Munisi, J who ordered the Amended Petition be filed in Criminal Appeal No. 20 of 2018 the present appeal. The learned Judge struck out Criminal Appeal No. 94 of 2018. 5 I in turn expunged the Petition of Appeal in Criminal No. 20 of 2018 for citing wrong charges and adopted the Amended Petition of Appeal, as the Petition of Appeal. This so called Amended Petition of Appeal raises five grounds which I shall paraphraise as follows;- 1. The trial court erred in convicting him basing on Exhibit Pl(The Pf3 ) which was admitted unprocedurally by being tendered by the Public Prosecutor. 2. The court erred in convicting the appellant on the basis of the evidence of Pwl whose testimony was recorded after and procedural voir dire test. 3. That the court erred in admitting exhibits without affording the appellant to comment. 4. That the judgment of the trial court did not observe laid down principles. 5. That the case was not proved against the appellant to the required standards. At the hearing of this appeal the appellant stood in person while the respondent Republic was represented by Ms Ellen Masululi, learned State Attorney who conceded to ground No.l that it was unprocedural for the Public Prosecutor to tender the Pf3. The learned State Attorney invited the court to expunge it. She also conceded to ground No. 3 and asked that the exhibits be expunged. As regards ground No,2 Ms. Masululi submitted that although the voir dire examination was not properly done it did not affect the 6 fact that Pwl being the victim is the best witness. She cited the case (without giving) full citation of Kimbute. The learned State Attorney submitted on grounds 4 and 5 together arguing that the judgment of the trial court analysed the evidence for both the prosecution and the defence before concluding on the guilt of the appellant. She concluded by submitting that the case against the appellant was proved beyond all reasonable doubts. The appellant a lay member of the society had nothing of significance to submit. He repeated the contention that Pwl's testimony was a re hearsed story from the police who wanted him implicated. He submitted in relation to evidence of the medical tests that he was only tested for HIV. In my deliberations, I find the concessions by the learned State Attorney intriguing in this case. She conceded that the PF3s were tendered by the Public Prosecutor and that it was a wrong procedure. The fact of the matter is that it was Pw2 the medical doctor who tendered both PF3s and there was no objection from the appellant. It is true that the accused in a Criminal Case has a right to comment on a proposed admission of an exhibit. [See Hussein Ramadhani ; V. The Republic, Criminal Appeal No. 195 of 2015, CAT at Mbeya (unreported)]. The record in this case shows that the appellant was given the opportunity to comment and he is recorded to have had no objection. 7 Therefore grounds No.l and 3 which relate to the tendering of exhibits, though conceded to by the learned State Attorney, are based on a wrong apprehension of the facts of the case, therefore misconceived. I now turn to the second ground of appeal which seeks to fault the voir dire procedure. In 2017 when the trial was conducted the law regarding voir dire test had been amended by the Written Laws (Miscellaneous Amendments) Act No. 4 of 2016. That Act amends sub sections (2) and (3) of Section 127 of the Evidence Act and replaces them with a new sub section 2 which provides; " (2) a child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell ties." Under the foregoing provision all that is needed by the court in recording evidence of a child of tender age is to get that witness to promise to tell the truth and not lies. The provision of section 127 of the Evidence Act does not, I am afraid, specify the manner in which such promise by the witness of tender age may be procured. I have given this aspect a thought and I am of the view that the court has to conduct some sort of a preliminary examination of the witness so as to get him or her to make that promise. I do not see how that may be achieved otherwise than by such preliminary examination. In this case the trial court conducted a voir dire examination, so the issue that falls for determination is whether that 8 procedure meets the requirement of sub section (2) of < the Evidence Act. First of all voir dire as defined by Black's Law Dictionary 9th Eok at Pg 1710 means; " 2. A preliminary examination to test the competence of a witness of evidence 3 . An oath administered to a witness requiring that witness to answer truthfully in response to question................................" In the instant case this preliminary examination led into a conclusion by the learned Resident Magistrate to the following effect; " Satisfied that, the witness(sic) know the, (sic), duties of telling the truth.." This begs the question whether knowing the duty to tell the truth is the same as promising to tell the truth. Certainly the two do not mean the same although a person who knows the duty to tell the truth is likely to make a promise to tell the truth if required to. It seems therefore that under the new sub section (2) of section 127 of the Evidence Act, a magistrate who is about to record evidence of a witness of tender age must conduct a preliminary examination during which he should invite the witness to consider whether or not to promise to tell the truth as opposed to lies. 9 In the present case this procedure was not observed and that renders the evidence of Pwl less credible. There is a large family of decisions to the effect that in sexual offences, the best evidence comes from the victim. One of such decisions is the case of Sylivester Boniphace V. Republic, Criminal Appeal No. 421 of 2015, CAT (unreported). Still under section 127(7) of the Evidence Act the court may convict solely on the testimony of minor victim of sexual offence but that may only be the case if for reasons to be recorded in the proceedings the said victim's testimony contains nothing but the truth. In this case there is no such observations by the trial court either in the proceedings or judgment. What is evident is that the trial court heavily relied on the testimony of Pw2 as corroborating that of Pwl. My conclusion from the foregoing is that Pwl's evidence was insufficient and since he is the only witness who would have firsthand information as to who sodomized him, the prosecution's case falls short of proof. As a result the second ground of appeal carries the day on the basis of which I allow the appeal, quash the convictions and set aside the sentences. The appellant should be released if not otherwise lawfully held. JUDGE 9/7/2018. io