20190918 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY) ATMWANZA CRIMINAL APPEAL NO. 398 OF 2017 (Appeal from the Judgment of the District Court of Geita at Geita (Swallo, SRM) Dated 28 th of March, 2017 in Criminal Case No. 204 of 2016) EMMANUEL PAUL· ........................................... 1sr APPELLANT MAN ENO MASE LE@ MAGANGA ..................... 2ND APPELLANT JUMA BIFWAKA YA@ MAGOBHE ....................... JRD APPELLANT VERSUS THE REPUBLIC ................................................. RESPONDENT Date of the last order: 22.07.2019 Date of Judgment: 18.09.2019 JUDGMENT OF THE COURT M.K. 1SMAIL, J This is a judgment in respect of an appeal filed jointly by the appellants, seeking to challenge the decision of the Dhtrict Court of Geita at Geita which found the appellant guilty of offence of armed robbery. Upon conviction, the appellants were sentenced to imprisonment for thirty (30) years. The trio was aggrieved by the 1 both the conviction and sentence, hence their decision to lodge this appeal. The petition of appeal has five grounds of appeal, ,. ~: j '0/- ·- • • I • reproduced in verbatim, as follows: 1. That, the prosecution evidence was not proved the charge {sic) as it has no basi~ matter of the offence which is the threat to the complainant {PW1) neither using of the alleged gun for the threat {sic). 2. That, the prosecution witnesses, PW1 and PWS were very contradicted and inconsistanced {sic) about who between them was beaten, what was used to threat (sic) them and why only PW 1 did hear the three bullets have {sic) fired. 3. That, the prosecution witnesses PWl and PWS did claim to identify the appellants at the scene without to {sic) disclose wether (sic) they were known to them before the incident, · why they did not mentioned (sic) PW4 to be at the scene and contradicted with (sic) them about source of light. 4. That, the retracted statement was admitted illegally · without to be conducted(sic) trial within trial for its admission. 2 5. That, the prosecution case was planted against the appellants due to strong defence evidence which was not considered totally by the trial court. In brief terms, this matter can be prefaced to the effect that at around 0 1:00 hours on l 7th M_arch, 201 6, an armed· robbery incident occurred at Ludete Village in Geita District, Geita region in which assorted items were stolen. These were TZS. 15,000/= in cash, golden items worth TZS. 300,000/=, four mobile phones worth TZS. 700,000/=. The victim of the incident was Ayoub Kasala. It was alleged that the incident involved threats and use of a gun from ~ which three bullets were shot immediately before and after the incident. The victim alleged that he was asleep when he heard the sound at the gate, he peeped through the window and saw the appell<:-10ts cutting the gate. He alleged thcit he identified them and heard them calling each other names. They then gained entry into the house and robbed him and wife at gun point. The appellants were then arraigned in court, convicted Ond sentenced to a prison term of thirty years. Aggrieved by the said 3 ' ' ' · decision, they are now before me challenging their conviction and 's.J'.~ sentence. The hearing pitted the appellants themselves and Ms. Gisela Alex, learned State Attorney, who represented the respondent. In coping up with the practice in matters in which the appellants are lay and unrepresented, I called upon the appellants to make a choice of either submitting first or let the respondent's counsel present her case first and let them come last. The appellants chose to submit after the respondent's counsel. Ms. Alex began by supporting the appeal. She submitted that the respondent does not support the trial court's conviction and sentence, mainly because the prosecution did prove the charge against the appellants. She contended that conviction was based on the testimony that the armed robbery incident occurred and the that the appellants were identified at the scene of the crime. This is gathered from the testimony of PWl, Ayoub Kasala, and PW4, Modesta Kasala as recorded at pages 4 and 13 of the trial court's proceedings. The learned state attorney submitted ·that PW l further testified that the door of his house was knocked and 4 when the assailants got in he identified them using a solar light. He ·~ . testified further that he heard the assailants calling each other names of Emma, Mgohi and Maneno, adding that the incident took between 30 and 40. minutes. The learned state attorney argued that other criteria as propounded in Waziri Amani v. R (1980] TLR 250, such as intensity of the light, des.cription and ., distance were not conformed to. She contended that in such a situation, she expected that an identification parade would be conducted immediately after arrest. Instead, the counsel contended, what happened was a dock identification. Citing the case of Majaliwa Deus & 2 Others v. R; Criminal Appeal No. 9 of 2005, the Court of Appeal found that dock identification has no weight unless it is preceded by proper identification parade. She held the view that failure to do so means that there was no proper identification of the accused. Making reference to the charge sheet, Ms. Alex submitted that whereas particulars of the offence in the charge state that the accused persons used a fire arm i.e. a gun, before and after the incident to threaten the victiry., PWl stated in his testimony (page 6 of the proceedings, that the accused was injured using dubs and 5 he did not see a gun. In view thereof, the counsel contended that · .! \~__,.;-. even the victim himself, PWl, denied that he saw a gun, against what the particulars of the offence state. In the last point, the learned counsel for the respondent submitted that no trial within a trial was conducted during admissibility of the cautioned statement and extra judicial statement. She contended that the trial court proceeded to admit exhibit Pl while it was objected to by the accused (see pages 11 and 12 of the proceedings. The same thing happened during the admission of an extra judicial statement (see page 8) which was objected to by the accused. Overall, the learned counsel said that she supported the appeal and that she did not support the conviction. The appellants did not have anything to submit on, other than thanking the state attorney for the job well done. Let me begin by disposing the first ground of the respondent's concession. This relates to the prosecution's failure to conduct an identification parade, given that the appellants . were hitherto strangers to the victim of the robbery incident and the incident 6 occurred in the middle of the night. The law is settled, in this country, ; '\.,.J, _ that evidence of identification can be used by a court as a basis for conviction, but only if such testimony is strong enough to sustain the conviction. This principle was enunciated in the old case of Abdallah Wendo and Another v. R ( 1953) EACA 166. The defunct Court of Appeal for East Africa set a condition precedent for application of such evidence, insisting that the evidence of identification must be watertight to sustain a conviction. This position inspired the Court of Appeal of Tanzania in Mwalim Ally and Another v. R (CAT) DSM Cr. App. No. 39 of 1991 {unreported), in which it observed as follows: "Where the evidence alleged to implicate an accused is entirely of identification, that evidence must be absolutely watertight to justify a conviction." See also Raymond Francis v. R [1994] TLR 100 (CAT). In gauging if identification evidence intended to be relied upon is watertight, courts are guided by principles that have been propounded in the land mark case of Waziri Amani v. R (supra). In this case, the Court held thus: "No court should· act· on evidence. of visual identification unless, all possibilities of mistaken identity are eliminated and 7 the court is fully satisfied that the evidence is watertight. The following factors have to be taken into consideration: the ·. .i \:.,) - • ::! '-) time the witness had the accused under observation, the distance at which he observed him, the conditions in which such observation occurred for instance whether it was day or night (whether it was dark if so was there moonlight or hurricane lamp etc), whether the witness knew or had seen the accused before or not." As rightly conceded by the respondent's counsel, the available evidence does not seem to indicate that any of these principles were followed. Worse still, no identification parade was conducted and the prosecution chose to rely on the dock identification which has been held to be prone with serious identification and a recipe for injustice. This alone cannot be the basis for a finding of guilty if it not preceded by a proper identification parade. This was held in Majaliwa Deus cited by the respondent's counsel, as well as in the case of Thadey Rajabu alias Kokomiti v. Republic, CAT-Criminal Appeal No. 58 of 2013 (unreported). In the cited case, the Court of Appeal was inspired by its .own decision in Mussa Elias & 3 Others v. Republic, CAT- Criminal Appeal No. l 72 of 1993. The Court said as follows: 8 "dock identification of an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade of which the witness successfully identified the accused before the witness was called to give evidence at the trial." In this case, it is blatantly clear that identification of the appellants was shrouded in mystery such that dock identification alone would not do. The appellants were strangers to the victims and the contest on whether these are the same people that perpetrated the robbery incident would only be settled by a proper identification, duly carried out through identification parade. Failure to do so rendered the dock identification to· be a mere charade which cannot be used as the basis for conviction. The second point of the respondent's disenchantment with the trial court's conviction centres on the fact that the confessional statements, which were admitted in court amidst protestation from the appellants. The trial court went ahead and admitted the statements and made a finding thereon during evaluation of the · case. It is trite law, in this country, that an accused's confession should only be admitted where there is no objectio~ from the maker of the said confession. When admissibility of the document is 9 . ·.l i r, contested, the Court should move with speed and put inquiry into . \..,;,'- the admissibility thereof. This is what the Court of Appeal held in the ~<, case Nyerere Nyague v. R, Cr Appeal No 67 /2010 {Arusha, May . ' i n 'j 2012), at pg. 6-9. It was held as follows: l "Objection to the admissibility of a confessional statement may be taken on two grounds: First, under sec. 27 of TEA that it was not made voluntarily or not made at all; Secondly, under sect. 169 CPA that it was taken in violation of provisions of the CPA i.e. sec. 50 & 51 etc." A review of trial court's proceedings takes me to pages 11 and 12 of the proceedings. It is recorded that the prosecution moved the court to produce a cautioned statement, purportedly recorded by the 1st accused person, the 1st appellant in the appeal. The latter objected to its tendering and admissibility in the following words: ''Accused: I have objection· because I did not give this statement. The police called me to sign the statement which was already written." The trial court reacted to the prayer and the accused's objection in the following words: "Court: The occused has objected the statement on ground that he was called to sign and the never gave any statement to the police. However the statement contains 10 information of the accused family, educational background which the witness would not know if not told by the accused himself. The accused said that he called to sign but he did not say why he signed if at all the statement was not his. He did not say that he was forced to sign it. I therefore admit the caution statement as exhibit P1 subject to corroboration." The same treatment was accorded to the extra-judicial statement which was adduced by PW2. The 1st appellant objected to its admissibility on the ground that the same was involuntarily procured after he had been tortured. The 1st accused then, now the 1st appellant, contended that he had issues with the manner in which both confessional statements were extracted from him. He denied to have ever made any confession. Having objected to its admissibility, the trial court ought to have asked itself: What follows after the objection? The answer to this question would still lie in the Nyague's case once again, in which the following direction was given: "As we understand it, the law regarding admission of accused's confession under this head is this: First, a confession or statement will be presumed to have been voluntarily made until objection to ·it is made by the defence on the ground, either that if was not voluntarily 11 made or not made at all (See also Selemani Hassani v R Cr. Appeal No. 364/2008 (unreported); Secondly, if an accused intends to object to the admissibility of a statement or confession, he must do so before it is admitted, and not during cross examination or during defence See: Shihoze Seni v. R, (1992) TLR 330); Juma Kaulule v R, Cr. Appeal No. 28 7/2006 {unreported} Thirdly, In the absence of any objection into the admission of the statement when the prosecution sought it to hove admitted, the trial court cannot hold a trial within a trial or inquiry suo motu to test its voluntariness. (See also Stephen Jason & Another v. R, Cr. Appeal No. 79 I 1999 (unreported)) Fourthly, if objection is made at a right time, the trial court must stop everything and proceed to conduct a trial within a trial (in a Trial with assessors) or inquiry, into the voluntariness or otherwise of the alleged confession before the confession is admitted in evidence. See also Twaha Ally & 5 c;>thers v R Cr. Appeal No. 78/2004 (unreported)." The position. in the cited decision was cemented in the subsequent decision in Frank Michael@ Msangi v. Republic, CAT- Criminal Appeal No. 323 of 2013. The superior Bench held thus: "We now hold without any demur that subordinate courts have a duty to hold a trial within trial whenever an 12 accused's confessional statement is either repudiated or retracted before it is admitted in evidence. Once an ''\J . . . objection is made by the defence after the trial court has informed the accused of his right to say something in connection with it, which is an unavoidable duty on the part of the court, the trial court must stop everything and proceed to conduct a trial within a trial, giving each side an opportunity to call a witness or witnesses in support of its position." In present case, the trial court relied on the contents of the statement to hold that the cautioned statement and extra are admissible, notwithstanding the fact that its admissibility was a subject of serious contention. Admissibility of the said statement ought n·ot have based on the contents of the statement. Rather, on the manner in which it was procured and whether such procurement conformed to the basic tenets of the law, as propou_nded in th·e Nyerere Nyague and Frank Msangi's cases. That would be done by c·arrying out a trial within a trial through . which all issues of admissibility would be settled_. This he did not do, and. position · of the law is that- such failure constitutes a fundamental infraction which renders the sta.tements inadmissible and the consequence is to have it' expunged from the record of 13 . evidence. This position was held 1n Frank Msangi's case (supra), ,.. U thus: "To the extent that the trial court did not comply with the requirement, the caution statements were wrongly adduced into evidence and we, accordingly, expunge them from the record of the evidence." I find that this is a fitting circumstance under which the Court of Appeal's wisdom can be brought into application. I order expunging of both confessional statements, admitted as exhibit P1, from the record of the prosecution's evidence. Having expunged the confessional statements from the record of evidence and, after holding that identification of the appellants was not in conformity with the law and, therefore, of no evidential value, what is left as a residue is the oral evidence of the prosecution's witnesses.' Key among the witnesses are PWl and PW4, the victims of the alleged robbery incident. Both were unanimous that the accused persons invaded their house and robbed them of assorted items and, before and during the incident, they threatened and assaulted the victims using some tradifional weapons such as sticks. · This evidence sharply 14 l 1 .l l contradicts the particulars of the offence which are contained in '. u the charge which found the proceedings that bred the present '1 '• appeal. In the latter, the allegation is that " .... Immediately before or after such stealing did·use a gun to threaten the said AYOUB S/0 KASALA .... " This variance means that, as rightly conceded by the leqrned state attorney, the evidence adduced during trial did not prove the charge levelled against the appellants. In other words, proof of ., ·! the offence of armed robbery, as contained in the charge sheet, l 1 l was not done by the prosecution. This is nothing short of the fact that the prosecution's failure to prove the case beyond reasonable ~ -- -- doubt. In this case, pr(?Of of the case beyond reasonable doubt would entail adducing evidence which proves particulars of the offence as contained in the charge sheet. Since what was adduced in trial differs, in profoun0 terms, with what alleged in the charge sheet, I join hands with the respon_dent's counsel and hold _that charges against the appellants · were not proved beyond reasonable doubt. Accordingly, I find that the appellants' conviction and the .resultant sentence are highly unsupportable and, therefore, irregular. Consequently, I allow the app~al, quash the conviction, 15 ·, set aside the sentence and set the appellants free, unless they are otherwise lawfully detained. I so order. 16 Date: 18/09/201 9 i;, v_ ~ . Coram: Hon. M. K. Ismail, J Appellant: 1st Present in person . j 3rd ·1 ·... 1 Respondent: Ms. Gisela Alex, State Attorney B/C: Leonard Ms. Alex: The matter is for judgment and we are ready to receive it. : Sgd: M. K. Ismail ;I JUDGE 18.09.2019 Court: Judgment delivered in chamber, in the presence of all the appellants, Ms. Gisela Alex, learned State Attorney for the R~spondent and in the presence of ·Mr. Leonard B/C, this 18 th ·~~ M. K. Ismail JUDGE 18.09.2019 · 17