20190729 TZHC Mwanza2

I· I I ' ,, IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY) 'AT MWANZA . CRIMINAL APPEAL NO. 244 OF 2018 (Appeal from the Judgment of the District Court of Misungwi at Misungwi (Marley, DRMJ Dated 30th of August, 2018 in Criminal Case No. 55 of 2018 I MASALU Kl SABO ........................... ~ .................. APPELLANT I VERSUS THE REPUBLIC ............. ~ ................:,................... RESPONDENT JUDGMENT OF THE COURT 03.07.2019 & 31.07.2019 M.K. ISMAIL, J This is an appeal preferred bi the appellant against, the conviction and sentence passed by the District Court of Misungwi at Misungwi. Vide Criminal Case No. 55 of 2018, the appellant was ; I arraigned in court facing a charge qf rape, contrary to sections 130 (1), (2) (e) and 131 of the Penal Code, Cap. 16 R.E. 2002. It was alleged that at about 05.00 hours on l 8th May, 2018, at Mondo ' I village within Misungwi district in Mwanza region, the appellant did 1 have carnal knowledge of his own daughter, Shija d/o Masalu, a girl of ten years of age. ( The appellant pleaded not guiHy to the charge, necessitating going to full trial which culminated in a finding ·of guilty, conviction and eventual sentence to imprisonment for thirty years. This did not go well with the. appellant who decided to mount a challenge against the conviction and sentence imposed. on him. He has preferred an appeal on the fol.lowing grounds: 1. That, in the absence of a properly conducted voire dire examination, the trial court had grossly erred in law and fact to admit and acted upon the PW'2 evidence. 2. That, the prosecution's exhibits P.O 1 (PF3) had been wrongly admitted for wanting the attesting witness, thus lacking evidential value. 3. That, the trial court magistrate had took no cautio~· in PWJ 's evidence before he entered a verdict against the appellant while the ·appellant's defence created doubts on PWl 's evidence. 2 ' . Briefly stated, it is alleged that on 18th May, 2018 at around 05.00 am, the victim, a step daughter of the appellant, was sleeping . in the living room. PWl, the victim 1s mother, noticed that the appellant, her husband, was not in bed at the time. She walked in'to living room where she found the appellant indulging in a sexual act with the victim. In utter disbelief qnd while crying, PWl took the victim to the village leadership before the matter was reported to. police. PWl found the victim with sperms and. fresh blood in her vagina. It was alleged that the appellant covered the victim's mouth with his hand as he raped her. On reporting to the police, a PF3 was issued for medical examination. The examination report was to the effect that the victim had sustained bruises in her vagina. Blood stains and white discharges were found in the vagina as well. The appellant was then arraigned in court where he was tried and convicted of murder and sentenced to imprisonment for 30 years. Dissatisfied with the conviction qnd sentence imposed on him, he h_as preferred this appeal. During the hearing of the appeal the appellant fended for himself, while Ms. Gisela Alex, learned State Attorney, appeared for 3 \ .the respondent. In view of the fact that the. appellant was I ' unrepresented and a layperson, the Court advised him to make a choice of whether to start his submission on the appeal or let the counsel for the respondent submit first before he comes later. The .. I appellant chose to submit the last. I Ms. Alex started by stating that she was· supporting the conviction and sentence passed by! the _trial court against the appellant and she prayed that this Court should uphold them. In . I . respect of the first ground of appeal, Ms. Alex submitted that there was no need of conducting a voire dirk test since the offence was committed on l 8th May, 2018, when the law o"n voire dire had been ! amended to dispense with the requirement. She submitted that the I amendment to section 127 of the Evidence Act was done through section 26 of the Written Laws (Miscellaneous Amendments) Act, No. 4 of 2016. This position, she contended, has been stated in the I case of Kimbuteh v. Republic, Criminal Appeal No. 300 of 2011. The 1 learned counsel further submitted that the trial court was satisfied that the victim was raped by the appellant I and that testimony of the victim, PW2 in the proceedings, was corroborated by evidence I 4 . of PWl who found the appellant infragrante delicto. She urged the Court to dismiss this ground of appeal. Submitting on the second ground, Ms. Alex conceded that the· provisions of section 240 (3) of the Criminal Procedure Act were not complied with, when an opportunity was not availed for the appellant to cross examine the maker of the PF3. To fortify her" position, she cited th_e case of Ghati ,Mwita v. Republic, Criminal Appeal No. 240 of 2011. She was of the view, however, that even with that evidence out of the way, testimony of PW 1 and PW2 was enough to support the conviction and the appellant did not controvert the testimony, meaning that she did not dispute it. With respect to ground three of appeal, the respondent's counsel held the view that this was merely an afterthought as the trial court made a thorough analysis of the defence evidence, and the trial found it to be lacking in weight. She contended that testimony of PWl was reliable and the appellant did not dispute it _apart from the appellant's allegation· that he was not in good terms with PW 1. 5 .I I The appellant's submission was I very brief. He denied any I I wrong doing and contended that he; was not in good terms with I • PWl because he told him to s,top drinlking. He contended that he I . declded to set him up to settled scoqes. The appellant submitted I further that the incident allegedly haRpened at the centre of the I I village _wheres he would raise an alar~ and .let neighbours come I and witness. Instead, PWl chose to g9. to a nearby village where her other relatives live and blow the m'.atter up. He prayed that his I appeal be allowed, conviction quashed and be set free. I I I dispose of this appeal by first dealing with the first ground of I . appeal in which the appellant contehds that no voire dire was I • . i conducted before PW2 testified in Cou~t. Without hesitation I agree I ! with the appellant that voire dire test was not conducted on PW2 • I I i and the reason for that is. as correctly stated I by Ms. Alex. This is that, i. following introduction of section 26 of Act No. 4 of 2016, the I i i requirement of voire dire test, as was cqtered for by section 127 (2) I I I and (3) of the Evid_ence Act, has been d~ispensed with, and the new requirement is as follows: 6 ''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 tell . lies." This means that the requirement in the current dispensation is only limited to giving a promise of telling the truth and no _lies. It · follows that, failure to carry out a voire dire test does not constitute an omission or error of law as contended by the appellant. It is simply a matter of change in the requirements. Whilst this is the position in the new set up, the question is, was this new requirement fulfilled in this case? The quest for ·this answer takes me to page 8 of the trial court's typed proceedings in which PWl 's testimony. is recorded. While age of the PWl is stated as 10 years, meaning that she is still of a tender age, there is nothing to show that this particular witness was led to fulfill the requirements of the new law. It is simply that the trial court did not require. her to make a promise to tell the truth qnd not to tell lies. This implies that this witness testified in court without any undertaking on the truthfulness of her testimony. I find this to be a was a fundamental flaw which has a devastating consequence to the testimony given 7 r -,in such circumstance. An apt position :in respect of this om1ss1on which was discussed by the Court of Appeal in Godfrey Wilson v. _J Republic, Criminal Appeal No. 168 of 20l8 (unreported). It hel~ firmly as follows: "In this case, since PWl gave her evidence without making prior promise of telling the truth . and not lies, there is no gainsaying that the required procedure was not complied· with before taking the evidence of the victim. In the absence of the promise by PWl, we think that her e~idence was not properly admitted in terms of section 12 7 (2) of the Evidence Act as amended by Act No. 4 of 2016. Hence, the same has no evidential value. Since the crucial evidence of PW l is invalid, there is no evidence remaining to be corroborated -by the evidence of PW2, PW3 and PW4 in view of sustaining the conviction." Inspired by the foregoing reasoning, I am inclined to hold the same in respect of PW2' s testimony, and expunge it from the record. I sustain this ground of appeal for that reason. The appellant's other area of disgruntlement relates to the manner in which exhibit P-01 was admitted. He takes exception to 8 the trial court's failure to allow him cross-examine the maker of it. This flaw has been conceded to by the counsel for the respondent. The proceedings show that exhibit p.,.Ql, the PF 3, was tendered in court by PW3 whose testimony is found ·at page 11 of the typed proceedings. It was admitted unopposed as exhibit P-01. Nowhere, in the proceedings, has it been indicate.d that the· requirements of section 240 (3) of the Evidence Act were complied with, after admission of the PF3. The trial magistrate did not take trouble to · explain the right that the appellant had to cross-examine the maker of the PF3, the medical expert who allegedly examined the victim and prepared the report. For ease of reference, the said provision is reproduced as hereunder: "When a report referred to in this section is received in evidence the court may if it thinks fit, and shall, if so requested by the accused or his advocate, summon and ' examine or make available for cross-examination the person who made the report; and the court shall inform the. accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection." 9 The appellant did not cross-examine PW3 when exhibit P-0 l was tendered and admitted in court, understandably so, since PW3 ( who tendered it, was not the maker or the medical expert who would be examined on the contents of the report. This fact provided a compelling need for the trial court to explain to the appellant on the right that he had to cro_ss examine the maker and that the same would be made available if he felt that such need arose. This did not happen and, as a result, the testimony sailed unscathed. This failure by the trial court cannot be considered to be of a trivial nature. It has the effect of occasioning an injustice, and the settled position in this country is that, when such flows happen, they have a bearing on the standing of the exhibit irregularly admitted. In Sprian Justine Tarimo v Republic, Criminal Appeal No. 226 of 2007 (unreported), the Court of Appeal held as follows: "We accept the conceded complaint that the mandatory provisions of section 240 (3) of the Act were not complied with by the trial court after exhibit P 1 had been admitted in evidence. This Court has held on numerous occasions that once the medical report as a PF3 has been received in evidence under section 240 ( 1) of the Act it becomes lO .. imperative on the trial court to inform the accused of his right of cross-examining the medical witness who prepared it: See Kashan Buyoka v R, Criminal Appeal No. 176 of 2004 (unreported) and Sultan s/o Mohamed v R, Criminal Appeal No. 176 of 2003 (unreported). The Court has, as a result, held that if such a report is received in evidence without complying with the provisions of section 240 (3) of the Act,-it should not be acted upon. The Court, in Sultan Mohamed's case went further and found the omission to have flawed the trial and ordered a retrial." The decision in Tarimo's case was preceded by another landmark decision _in Dawido Qumunga V. Republic [1993] TLR 120 in which the Court of Appeal held thus: "The provisions of section 291 of the Criminal Procedure Code are mandatory and require the Court to inform the accused about his right to decide whether or not he wants the doctor who performed the post mortem called to testify." As if this is not enough, the trial court committed another horrendous omission when he did not allow reading of exhibit P-01 11 r,when it was admitted 1n court. This was an infraction of the law whose consequence is also colossal. In Ghati Mwita's case (supra) the Court of Appeal quoted with appiroval,. the case of Bahati Masebu V. Republic, Criminal Appeal No. 135/1991 (unreported) and held that such failure was of fatal effect. In Sprian Tarimo's case (supra) the Court of Appeal laid an emphasis on what happens when this requirement is ignored. It observes as hereunder: "Another fatal flaw is that the contents of Exhibit P 1 were not even read out to the appellant. So the appellant was convicted on the basis of evidence he was not made aware of although he was always in court throughout his ' trial. In our settled view, these two serious omissions which, unfortunately, escaped the attention of the learned first appellate judge, wholly vitiated the evidential value of the PF 3. We shall accordingly discount it in our judgment." In the final analysis, the Court bf Appeal expunged the testimony, and I feel highly inspired to follow that path with respect to this anomaly. This ground of appeal is also sustained. Before I dwell on the last ground of appeal, I choose to look back and revisit the residual tes1'imony and ask myself if it' has what it 12 takes to discharge the burden that the prosecution has in proof of criminal cases. This is the testimony of PWl, the victim's mother who ( alleges he found the appellant indulging in an act of rape ogainst the victim. She alleges that when she found them she reported the matter to the local. council leader who took the matter to the police. What comes out as a very strange scenario is that the said local government leader, who I consider as a very crucial witness who would also say if PW l reported the incidet:)t immediately or belatedly was not called to testify. In the circumstances where the appellant has alleged bad blood between him and PW l, veracity of her testimony remains highly suspect and unsafe to rely on as the only direct evidence that would prove the charge. It makes me feel that it is too deficient to rely on as the basis for conviction after the significant chunk of the testimony was c~alked off. I am of a settled view that the residual evidence, which includes that of PW3 is quite paltry to move me to uphold the conviction. Consequently, I hold that the case against the appellant was not proved at the standard set for founding conviction in criminal cases. With this finding, I find it is quite superfluous to discuss the third ground of appeal. l choose to let it die a natural death. 13 • In the final analysis, l allow the appeal. I quash the conviction n and set aside the sentence against the. appellant and order that the appellant· be released from c_ustody and set ·free forthwith unless . they he is held or detained for any other lawful cause. ' It is so ordered. ' DATED at MWANZA this 31 st day of July, 2019. ' ,.- - - - - 7 ~(~-'- l ' . ISMAIL , JUDGE 14 ,, IO Date: 31 /07/2019 Coram: Hon. M. K. Ismail, J Appellant: Present in person . . I Respondent: Ms. Mwaseba, State Attorneyf 1 B/C: Leonard . · · . I Ms. Mwaseba: My Lord, the matter is for judgment afnd we are ready. . I. Sgd: M. K. lsm~tl JUDGE i 31.07.2019 Court: Judgment delivered in chambers in the presence of the appellant iQ__peJson, Ms. Mwaseba, State Attorney for the respondent r,...,~?~~:- ~-~.-~. .,.:;1:;· ~'"~-a-" . ): - and MffG.eb-hpfd.:'.~/Q,Jhis, 31 st July, 2019. 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