Jdg Criminal case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 24314 OF 2024 (Originating from Criminal Case No. 16108 of 2024 before Kiteto district court at Kibaya) JEREMIA KWANGA …….…………………………….... APPELLANT VERSUS THE REPUBLIC …………………………....................RESPONDENT JUDGMENT 10thOctober & 25th November, 2024 Kahyoza, J.: Jeremia Kwanga (the appellant) was charged with the offence of grievous harm, convicted upon his own plea of guilty and sentenced to seven years’ imprisonment. Aggrieved, he appealed against conviction and sentence, contending that the sentence was excessive, that the trial court did not consider that he committed offence after he was provoked, that the trial court did not consider his plea of guilty, that it did not a fact that he was disciplining his wife and that the trial court acted hastily to convict and punish him. Finally, the appellant contended that the trial court misconstrued facts by holding that he punished his wife using a sharp object while in fact he used a stick and there was no sharp object at the scene of the crime. Ms.Blandina Msao, learned state attorney who appeared for respondent, supported the appeal owing to the fact that the trial did not 1 comply with the laid down procedure for plea of guilty. She added that the appellant’s plea of guilty was equivocal, thus, the trial court misdirected itself to ground a conviction on such a plea. There are two issues; one, whether the appellant’s plea was unequivocal; two, whether the sentence was excessive. This Court will consider the second issue only if, the first issue is answered in affirmative. Was the appellant’s plea unequivocal? The appeal was heard orally. The appellant appeared in person and he had nothing to add to the grounds of appeal. Ms Blandina Msao, learned state attorney, supported the appeal. She contended that the appellant was convicted upon his own plea of guilty, hence, he had no right to appeal. However, the law provides that even in the circumstance where a person is convicted upon his own plea of guilty the court may consider whether the accused plea was unequivocal. To support her contention, she cited Mandsela Kunguru v R. 462/2017 tanzlii [2020] TZCA 189. She argued that the appellant pleaded guilty to the offence of grievous harm. She added that after the accused pleaded guilty, the prosecution was required to read the facts to the appellant. The facts constituting the offence were read out. The accused person was required to 2 stated as to the facts he admitted. In case of Mandsela Kunguru v R. (above). The appellant stated in his appeal that he admitted to use a stick and not sharp object as it was alleged by the prosecution. The fact that the accused person did not state in his plea how he committed the offence renders the plea not unequivocal. She referred the court to Mkura Mkama v. R, Cr. 308/2020 tanzlii [2024] TCZA 428, where the court of Appeal held that the facts should disclose the elements of the offence and the accused person should admit to the elements of the offence. The prosecution tendered the statement of the accused as Exh. P. 2 and PF.3 was admitted and their contents were not read to the appellant. The exhibits were not properly tendered. She prayed the exhibits to be expunged. Indisputably, the appellant pleaded guilty to the offence of grievous harm and the court convicted him upon his own plea of guilty, thus, he could only appeal against the sentence. Section 360 of the Criminal Procedure Act, [Cap. 20 R.E. 2022] provides in no uncertain terms that an appeal shall not be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence. The law allows an accused person convicted upon a plea of guilty to appeal against sentence. The Court of Appeal in the often cited and celebrated case of Lawrence Mpinga v. 3 Republic [1983] TLR 166 stated lucidly under which circumstance a person convicted upon his plea of guilty may appeal. It stated - “(a) An appeal against a conviction based on an unequivocal plea of guilty generally cannot be sustained, although an appeal against sentence may stand; (b) an accused person who has been convicted by any court of an offence “on his own plea of guilty” may appeal against the conviction to a higher court on any of the following grounds; i. That, even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason the lower court erred in law in treating it as a plea of guilty. ii. That he pleaded guilty as a result of mistake or misapprehension; iii. That the charge laid at his door disclosed no offence known to law; and iv. That upon the admitted facts he could not in law have been convicted of the offence charged. Section 228 (1) and (2) of the CPA states that the trial court can convict an accused person if that accused person admits the truth of the charge. It states that further after the accused admits the charge, the court must record his admission as nearly as possible in the words he uses. It provides that- 4 ''228.-(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. (2) where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary.” The law further states that after the court has recorded the accused person plea of guilty, shall convict him unless there appears sufficient cause to the contrary. It is therefore, the duty of the court to consider whether the facts adduced by the prosecution to establish the elements of the offence and that the accused plea is unambiguous. The Court of Appeal’s recent decision in Emmanuel Ambrous V. R., Court of Appeal Criminal Appeal No. 555 Of 2017 CAT (Unreported) held that “an accused can only be convicted on his own plea of guilty if the court is satisfied that his plea is unequivocal.” It is very vital to determine if the appellant’s plea was unequivocal. The procedure to be adopted after a person pleaded guilty is settled and that procedure must be followed to ensure the accused person’s plea is unequivocal. The Court of Appeal in Khalid Athumani v R. [2006] TLR 79 5 approved the procedure for plea of guilty which was pronounced in Adan v Republic [1973] EA 445 that- “When a person is charged, the charge and the particulars should be read out to him, so far as possible, in his own language, but if that is not possible, then in a language he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential legal elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts of asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to the sentence. The statement of facts and accused’s reply must, of course, be recorded.” Looking at the record, the trial court caused the prosecution to read the charge sheet and explained the charge sheet to the appellant. The appellant pleaded guilty. Following the accused person’s plea of guilty, the 6 magistrate recorded the appellant’s plea in his own words. The appellant’s plea was recorded as follows- “Court: Prayer granted, charge read to the accused person who is asked to plea thereto. Accused: kweli nimemshambulia baada ya kupata tetesi kuwa anatembea na mwanamme mwimgine wakati ni mke wangu japo sijamtolea mahari ila posa nishapeleka kwao Tzs. 35,000.00. EPG” M.S. SASI, SRM 12/6/2024 The trial court entered a plea of guilty and called upon the prosecution to give detailed facts. The record depicts that after every time the prosecution read a statement of facts, the court called upon the appellant to respond to the facts. This procedure was new but I think it is not in itself fatal as at the end the appellant would have pleaded to all facts. Surprisingly, after the prosecution completed to read the facts, the court did not call upon the appellant to plead to the facts and make a finding if the facts stated did establish the elements of the offence. The court proceeded to pass a sentence immediately after the prosecution concluded adducing facts. The trial court’s record reads as follows- 7 “COURT: Exhibits received, caution statement as PE.1, the extra judicial statement as PE.2 and the victims PF3 as PE.3. M.S. SASI, SRM 12/6/2024 COURT: This court has found the accused person guilty on his own plea of guilty, therefore convict him. M.S. SASI, SRM 12/6/2024” It is obvious that the trial court did not comply with laid down procedure in Khalid Athumani v R. (supra) as it did give the accused an opportunity to dispute or explain the facts or to add any relevant facts. The trial magistrate did not determine whether the facts established elements of the offence the appellant stood charged. In other words, the trial court did not consider the facts advanced. Had the trial court given the appellant an opportunity to comment on the facts advance, she would have been in the position to decide whether the plea was unequivocal. In addition, it is on record that after prosecution read the charge to the appellant, he responded that he committed the offence after he was provoked, upon discovering that his wife had extra-marital love affairs with another man. The appellant’s statement amounted to a denial of criminal liability. He raised a defence of provocation. The trial court did not give 8 attention to the appellant’s denial of liability. The appellant admitted facts proving one element of the offence of previous harm, that is the actus reus. The appellant admitted to commit the physical act of inflicting harm. However, the appellant did admit facts establishing the mens rea, that is the guilty mind. It is an established principle of criminal law that a person may be convicted when and only when, the prosecution establishes both “actus reus” i.e guilty act and mens rea that is the guilty mind. The guilty mind is the accused person’s conscious desire to commit the offence. The offence of grievous harm is committed when a person unlawfully (mens rea) harms (actus reus) another. Looking at the appellant’s plea, he admitted to harm his wife but he denied to so unlawful as to him the act of finding that his wife had extra-martal relationship with another man justified him to punish his wife. It was therefore upon the court consider and determine if the appellant’s plea was unequivocal. The Court of Appeal in Robert N. Mbwilo vs Republic (Criminal Application No.154 of 2017) [2019] TZCA 403 (4 November 2019) observed that “...the general principles of law that, before convicting the accused on his own plea of guilty, the trial court has to explain the ingredients of 9 the offence he is facing, and what he says must be recorded in the form which will satisfy the court that the said accused well understood the charge and pleaded guilty to each of element thereof unequivocally”. The appellant did not enter a plea guilty to all ingredients of the offence he stood charged. He did not plea to the elements establishing men rea. It was not fair and a misdirection to say that the appellant entered a plea of guilty to the charge of grievous harm that was preferred against him. Thus, failure to comply with the procedure led to the trial court to convict the appellant on an equivocal plea of guilty. Was the sentence excessive? The respondent’s state attorney submitted that the sentence was excessive as the accused person pleaded guilty was entitled to a lenient sentence, the maximum sentence imposed was excessive. She prayed the appellant to be re-tried. In his short rejoinder, the appellant prayed this court to hold that he had served a sentence for staying in four months and release him. Having found that the appellant’s plea of guilty was not unequivocal, I will not determine the issue whether the sentence was excessive but simply 10 state that the trial magistrate ought to have complied with the Tanzania Sentencing Guidelines, 2023 when passing the sentence. In the end, I find the plea of guilty proceedings a nullity, quash them. I order the court to read the charges afresh to appellant. If the appellant pleads guilty or he is tried and convicted, the trial court shall take into consideration, the period he has been in prison. I order accordingly. Dated at Babati this 25th day of November, 2024 John R. Kahyoza Judge Court: Judgment delivered in the absence of the appellant and the Respondent. B/C. Mr. Shadrack (RMA) present. John R. Kahyoza Judge 25. 11.2024 11