20191029 TZHC Dodoma

"ORIGINAL" 0 IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 27 OF 2018 (Originating from the District Court of DODOMA Economic Case No. 19of 2015) DIRECTOR OF PUBLIC PROSECUTIONS ............ APPELLANT VERSUS BONIFACE MATHEW MALYANGO ................... RESPONDENT @ SHETANI HANA HURUMA JUDGEMENT Mansoor, J: 29TH OCTOBER, 2019 Before the District Court in Economic Crime Case No. 19 of 2015, Boniface Mathew Malyango@ Shetani hana Huruma, the respondent herein was charged together with 1 "ORIGINAL" JUMA MATHEW MALYANGO@ SIRIRI SIMON@JUMA, LUCAS PHILIPO HOSEA @KAYAGO , MWINYI JAMAL KITALAMBA IGONZA, LUCAS MAYAI @ DAMSON MAYAI, EMMANUEL DAUDI SINDANO © J4, YOHANA JACKSON CHUMA ULAYA © KAPELEMELA with the offence of leading organized crime c/s to paragraph 4 (1) (a) of the 1st Schedule to and Section 57 (1) and (60) of the Economic and Organized Crime Control Act (Cap 200 R: E 2002). They were all charged with the second count of unlawful dealing in trophies c/s 80 (1) and 84 of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 (b) of 15t Schedule and Section 57 (1) of the Economic and Organized Crime Control Act (Cap 200 R:E 2002). They were also all charged for the offence of unlawful possession of Government Trophies c/s 86 (1), (2) (c) (ii) 2 "ORIGINAL" and (3) (b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 (d) of the 1st Schedule and Section 57 (1) of the Economic and Organized Crime Control Act (Cap 200 R: E 2002). The Trial Court acquitted the respondent in all the three counts. The Director of Public Prosecution was not happy with the acquittal; he filed the Petition of Appeal raising Four Grounds of Appeal as follows: The trial Magistrate grossly erred in law and fact by holding that the prosecution failed to prove its case beyond reasonable doubt against the respondent; That the Trial Magistrate grossly erred in law and fact by misconceiving the concept of constructive possession against the respondent; 3 F.. "ORIGINAL" The Trial Magistrate grossly erred in law and fact as she failed to consider the strength of prosecution witnesses' testimonies against the respondent; The Trial Magistrate grossly erred in law and fact as she failed to reflect the strength of the prosecution exhibits against the respondent. During the hearing of the appeal, the Appellant, the state was represented by Mr. Salim Msemo and Ms. Bertha Kulwa, the State Attorneys, while the Respondent was represented by Mr. Godfrey Wasonga, the Learned Advocate. As shown herein above, the original case at Dodoma District Court, there were 8 accused persons, 7 were convicted but the respondent herein who was the 1st accused person was acquitted in all counts. ru "ORIGINAL" Mr. Salim Msemo, the learned State Attorney submitted that the prosecution was able to prove the elements of the first count, the count of leading organized crime. He said the prosecution was able to prove that the respondent herein financed a criminal racket and managed the entire commission of the offence, that he was managing and financing the other seven co accused in the commission of the offence. He pointed out the evidence of PW2 one Zuhura Iddi, the wife of Accused No. 3 Lucas Philipo Hosea @ Kayago. This witness said her husband used to send her to the respondent to take money for financing the illegal business of killing elephants. This witness said her husband introduced her to the respondent on 20th March 2013, and she was able to identify the respondent on the dock. 5 "ORIGINAL" Mr. Salim Msemo also said the evidence of PW3, Hashim Abdullah Martin, a bodaboda Driver. The evidence of PW3 implicated the respondent. He said on 14/06/2014 he received a phone call from the respondent as the respondent wanted to confirm if he had received .Juma Mathew Malyango. He also said that he was directed by the respondent to take the weapons from one George and Festo and directed him to where to take the weapons; the weapons were used by the accused persons to hunt elephants. This witness testified in court that he met with the respondent in Dodoma, Bahi Road; he identified the respondent on dock identification. Counsel Salim Msemo also submitted that the evidence of PW8, Police Officer with No. D7312, D/SSgt Jumanne who recorded the statement of the respondent on 1/11/2015, the statement was received as Exhibit P11. In the "ORIGINAL" statement the accused admitted his involvement in the 18 trophies found in possession of the rest of the accused persons in trial court. He also confessed in his statement that the weapons used in the killing of the elephants were his weapons. He also pointed out the evidence of PW11 one Ndauka Salum Kabelege who is the son of PW2, Zuhura Iddi. This witness told the court that he was asked by the respondent by telephone that he should accompany PW3 to take the guns from Festo and George, and he was promised by the respondent that if he does as directed, his mother who was at that time in police custody would be released. Another piece of evidence which incriminated the respondent is the evidence of Lucas Philip Hosea ©Kayago, who was the 3rd accused at trial. He mentioned 7 "ORIGINAL" the respondent in his cautioned statement as the person * who was financing and organizing a criminal racket. Mr. Salim Msemo, the State Attorney faulted how the Trial Magistrate analyzed the evidence, he said the Trial Magistrate failed to consider the confession made by the respondent in his cautioned statement, and thus reaching into a wrong conclusion. He said the same evidence the magistrate used to convict the 7 accused at trial, the same evidence were used to acquit the respondent and this was double standard and the trial magistrate failed to give reasons as to why she concluded that there was no enough evidence to convict the respondent while the same evidence was enough to convict the rest of the accused persons. Salim Msemo, the State Attorney also challenged the analysis of the evidence done by the Trial Magistrate, he "ORIGINAL" said, Exhibit P11 1 the cautioned statement of the respondent was admitted by the Trial Court after an enquiry. The Magistrate treated the statement as a repudiated confession, and there was nothing to corroborate the confession, Counsel Msemo says the statement needed no corroboration since it was admitted after an enquiry. Counsel Msemo said the statement (Exhibit P11 was corroborated by the evidence of PW2, PW3 1 PW11, and the statement of co accused No 3 one Lucas Philipo Hosea © Kayago. On corroboration of evidence Counsel Msemo referred to the case of Masumbuko Madirisha vs. R, Criminal Appeal No. 59 of 2009, CA sitting at Mwanza, in which the Court said at page 9 as follows: "It is of course not necessary to have confirmation of all the circumstances of the "ORIGINAL" crime. Corroboration of some material particular tending to imDlicate the accused is enouah and whilst the nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged, it is sufficient if it is merely circumstantial evidence of his connection with the crime. Corroboration may also be found in the conduct of the accused". Counsel Msemo said, the statement of the respondent which was repudiated was corroborated by the statement of accused No. 3 and the court could have used the repudiated statement to convict the respondent. On this he referred the court to the case of Dickson Elia Nsamba Shapwata and others vs. R Court of Appeal 10 S "ORIGINAL" siting at Mbeya in Criminal Appeal No. 92 of 2007, in which it was stated at page 12 of the judgment: "It will be recalled that this was the thrust of the second pround of appeal. With 'respect, we agree with Mr. Mkumbe that it is always desirable to look for corroboration in support of a confession which has been retracted/repudiated before acting on it to the detriment of the appellant. However according to the current state of law, a court may convict on a retracted/repudiated confession even without corroboration." Regarding the evidence of the co accused, Counsel Msemo cited Section 33 of the Evidence Act, and said the evidence of Accused No. 3 corroborated and supported the prosecution case as it mentioned the respondent as the 11 "ORIGINAL" principal offender who aided and abated the other co accused in the commission of the offence. He also referred to Section 22 of Penal Code, Cap 16 RE 2002. Counsel Msemo submitted that the respondent was in constructive possession of the 18 trophies since his weapon Rifle 458 and Rifle 375 were used in the killing of the elephants, he was also financing the criminal racket as proved by PW2, PW3 and. PW11 and the statement of Accused No. 3. On this he cited the case of Moses Charles Deo vs. R, 1987, TLR 134, at page 139, Court of Appeal, the Court said: "for a person to be found to have had a possession, actual or constructive of goods , it must be proved that he was aware of their presence and that he exercised some control over them or that the goods came albeit in his 12 "ORIGINAL" -- absence, and that he exercised some control on them." Mr. Wasonga replied by challenging the grounds of appeal that they did not arise from the judgment. He however did not explain what he meant by this since all the grounds of appeal are centered on the impugned judgment. He countered the argument regarding the use of fire arms in hunting the animals. He said first there was no proof that the firearms belongs to the respondent and secondly the evidence of PW3 and PW11 did not prove that the firearms were used in obtaining the 18 trophies , the subject matter of this case. He also challenged the evidence of PW2, PW3 and PW11 as there was no proof that the respondent had sent money to any of these witnesses and also there was no proof of any telephone conversation between the 13 "ORIGINAL" respondent and the three witnesses i.e. PW2, PW3 and Pw11. He also challenged the validity of the cautioned statement of the respondent (exhibit P11). He said the cautioned statement was recorded outside the prescribed four hours period and thus contrary to section 50 and 51 of the Criminal Procedure Act. He said the respondent was apprehended on 23/10/2015 while the cautioned statement was recorded on 1/11/2015 almost 7 or 8 days later. He cited the case of Said Bakari vs. R Criminal Appeal No. 422 of 2013, (unreported). He urged the court to expunge the statement since the evidence in it was obtained illegally. 3rd accused statement, he said this Regarding the statement was not corroborated and thus section 33 of the Evidence Act requires that the evidence of co accused must be corroborated. Since there is nothing on record to 14 "ORIGINAL" corroborate the evidence of accused No 3, then section 33 of the Evidence Act prohibits the court to convict a person solely on the evidence of co accused which was not corroborated. Advocate Wasonga also countered the arguments on constructive possession of goods and the holding in the case of Charles Mussa Deo vs. R (supra) cited by the learned state attorney in his submissions. He said the respondent herein was not aware of the existence of 18 trophies and he did not have control of the trophies. He said no prosecution witness had testified in court in effect that the respondent was aware of the existence of the 18 trophies or that the respondent was organizing or managing the acquisition or selling of the 18 trophies the subject matter of the case. I understood from the submissions of the counsels for both sides that the evidence that connected the respondent 15 "ORIGINAL" in the commission of the three counts charged are the evidence of Pw2 Zuhura Idd, the evidence of PW3 Hashim • Abdullah Martin, the evidence of PW11 Ndauka Salum Kabelege, the cautioned statement of the respondent (Exhibit P11), and the cautioned statement of co accused, accused No 3 one Lucas Philipo Hosea @ Kayago. I shall start with the evidence of PW2. PW3 and PW11 who in essence have said that there were in telephone communication with the respondent giving those directions on what to do either before the commission of the offence or after the commission of the offence. Investigation means collection of evidence for proving a particular fact. While investigating a crime, the police have to take various steps to prove a particular fact in which they seek the court to believe. PW2, PW3 and PW11 claims to have been in telephonic conversation with the respondent. 16 "ORIGINAL" The investigation team ought to have brought proof of such conversation between the respondent and these witnesses. .1 There was no telephone number given by these witnesses in which a telephonic conversation could have been recorded. These witnesses could have strengthened their testimonies if the investigating agency could have produced the telephone number and the telephonic conversations or tape recorded conversations could have been very crucial in backing up the oral testimonies of these witnesses. All these three witnesses have deposed that the respondent has sent money to them; PW2 deposed that her husband, accused No. 3 used to send her to the respondent to collect money; while PW3 said the respondent sent him money. Pwll also said the respondent sent money to him to facilitate the taking of the guns from George and Festo and hand it over to other people. PW11 did not mention these 17 "ORIGINAL" other people he took the guns to, and did not prove how the money was sent to him. PW3 also did not prove how much money and how the money was sent to him, similarly PW2 could not say how much money was given to her and by which means. The respondent denies sending or giving money to any of these witnesses and so the burden of proof lied on the prosecution to prove that the respondent sent the money or gave money to these witnesses in order to prove the first count of leading, financing and organizing a crime, and the offence of constructive possession of the 18 trophies. From the defense taken by the accused/the respondent at the earliest point of time till the end, it made clear that, he did not send the money and he did not give money to anyone and he was no in the financial capacity to give finance or borrow money to any of the accused persons or 18 "ORIGINAL" the witnesses. Therefore, the presumption is drawn in favor of the respondent; it is subject to prove the contrary. In view of the strong defense taken by the respondent coupled with no documentary evidence on record produced by the prosecution to prove that there was money exchange between the respondent and the witnesses, the inference is drawn in favor of the respondent that no money exchanged between PW2, PW3, PW11 and the respondent. Since the State has touched the financial capacity of the respondent, it is the State to establish the respondent's financial capacity to finance the huge extent of money which is countable money. None of these witnesses or any other witness in presence of whom the money was claimed to be paid to them by the respondent was able to give cogent evidence that they received money from the respondent. 19 "ORIGINAL" Ongoing through the records, it does not disclose the fact that, when the accused/respondent sent or gave the money to the witnesses, how much money was sent or given, and on whose presence, the money was given. The non-mentioning of the said particulars, there is no explanation fourth coming from the side of the State. In a criminal case, the State has to prove beyond the reasonable doubt in the case against the respondent as alleged in the charge sheet. The prosecution failed to prove that the respondent financed managed or led a criminal racket as alleged through these three witnesses. The prosecution also failed to prove the offence of possession or dealing in the illegal business of trophies through the testimonies of these Witnesses. PW11 who was found with the guns stated that he was directed by the respondent to go take the firearms from 20 "ORIGINAL" George and Festo and hand it over to some other people, he did not mention the other people. George and Festo who are the material witnesses also were not examined by the prosecution. There was no proof whatsoever of the instructions received by this witness or PW3 from the respondent either in writing or telephonic conversation. Again, as general rule and under the Arms and Ammunition Act all guns regardless of type, caliber and muzzle energy are considered firearms for legal purposes; and as such are subject to licensing and registration. There was no proof whatsoever given at trial to prove that the firearms, the rifles found in the hands of PW11 and PW3 were registered in the names of the respondent so as to hold him liable for the offence of leading and financing the organized crime or any other offence. The respondent was also not charged with the offence of unlawful possession of firearms, and there was no proof that such weapons which belonged to 21 "ORIGINAL" the respondent were used in the killing of the elephants, subject of the case. In totality, the evidence of PW2, PW3 a PW11 lacked proof and are hereby discarded. Now coming to the cautioned statement of the respondent which was received in court as Exhibit P11. His statement was recorded by PW8, police officer with No. D7312 D/SSGT Jummane. He recorded the statement of the respondent on 01/11/2015. He tendered the statement in court and after the inquiries the statement was admitted as Exhibit P11. In the statement the respondent admitted to be involved in the poaching business, in particular he admitted to be involved in the killing of the elephants and he was responsible for the 18 trophies, the subject of the case. He also admitted that he was dealing with the business of killing elephants and buying and selling the trophies since 2009. He also admitted 22 "ORIGINAL" that a Rifle No. 458 is his gun. The respondent however retracted the confession made by him before the police claiming that he was tortured and he was forced to confess. He said the police went to his house, he was searched but they only found a pistol. The police took a pistol and his mobile phone and his ATM Card from Akiba Commercial Bank. They took his Voters Identification card and the National Identification Card. He was arrested and taken to Mikocheni and there he was badly tortured. He was asked to sign on some papers, he signed without knowing the contents. What can be gathered from the above discussion is that although there was an enquiry held by the trial court and the statement was admitted as evidence but that confession was retracted in that it was obtained involuntarily under torture. Thus when the prosecution seeks conviction of an accused 23 "ORIGINAL" on the basis of the confession of the accused himself, there is no impediment in basing the conviction of the accused on his own confession if the Court finds such a confession voluntary and true; and this was held in the case cited hereinabove, yet, as a rule of practice, it is unsafe to rely upon a confession, particularly, if the confession stands retracted, unless the Court is satisfied that the retracted confession is voluntary and true and the same has been corroborated in material particulars. It is a rule of law and as stated in many cases that a retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is a rule of prudence that under no circumstances such a conviction can be made without corroboration, for, a court 24 4- "ORIGINAL" may, in a particular case, not be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. The learned Trial Magistrate declined to act on the said confession mainly for two reasons. First is that the confession was retracted by the maker thereof and there was no corroboration. I understand that as a matter of practical knowledge, I can say that non-retracted confession is a rarity in criminal cases. All accused persons retracted from confession and this is the right of the confessor and all the accused against confessions were produced by the prosecution have 25 "ORIGINAL" • invariably adopted that right. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once these tests are found to be positive the next endeavour is to see whether there is any other reason, which stands in the way of acting on it. A trial an enquiry was held and the trial court was satisfied that the confession was voluntarily made, that there was no torture. However, the confession was retracted at trial and needed corroboration. Although there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be 26 "ORIGINAL" corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution. The retracted confession was not corroborated by any other piece of evidence, the evidence of Accused No. 3 which was also admitted as evidence was a retracted confession and that itself could not be used to corroborate other evidence since 27 • J• L J - "ORIGINAL" the confession of Accused No 3 needed corroboration and could not be used to or be the solely basis for conviction of the respondent. The evidence of PW2, PW3, PW8 and PW11 were expunged from records, and thus cannot be used to corroborate the statement of the respondent, thus the retracted confession of the respondent remained uncorroborated and it was not safe at all to rely on it to convict the accused or the respondent of all the counts charged. Since there was no evidence connecting the respondent in all three counts, this appeal lacks merits, and it is hereby dismissed. 28 'k i "ORIGINAL" Appeal dismissed. 10-11 , W6~ MANSOOR A - JUDGE ) October, 2019 M I Judgement delivered in Court today in the presence of the Appellants, MS. Bertha Kuiwa and Majuma Mkonyi, State Attorney, Respondent present and represented by Godfrey Wasonga, Advo MARIKY the Court Clerk. PZ .. fC ANSOOR AJUDGE October, 2019 29