19830905 TZCA Dar es Salaam

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IN THE COURT OF APPEAL OF TANZANIA AT ARU,$HA (CORAM: NYALALI, CoJ.' MWAKASEI\!D.O, JoAo & MAKAME, J.A.) CRIMINAL APPEAL NO. 51 OF 1982 B E T W E. E N 1.

2. CHRISTOPHORO KIMAMB01 ·,, LEONARD NOEL • • • . . . . . . . . APPELLANTS

AN D THE REPUBLICo o o o o e o t,G • o o • • • •• • RESPONDEN~ (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) (Maganga, J.) •. dated the 22nd day of Se;etember, 198i ~·•·•, .,rUDGMENT OF THE COORT NYALALI, C.Jo: The two appellants in this• c·ase, namely, Christophoro Kiinambo and L~_onard Noel, hereinafter c:alled the first appellant and the second appellant, respectively, were jc,intly charged with another person who was acquitted in th~ High ·court at Mosh:t with the offence of murder contrary to section 196 of the Penal Codeo The appellants were convicted as 'charged ·and sentenced to suffer death by hanging. Aggrieved by the conviction and sent~nce they are appealing to this court~ Mr. Shayo, learned advocate, appeared for the first appellant, whereas Mr. Zaffer All~• lecrned advocate, appeared for the second appellant. The Republic was represented by Mr. Mtingele, .learned State Attorney. From the proceedings both in this court and in the court below, the following primary facts are either common ground or of undisputed between the parties: On the 1stLJanuary, 1978, there was a party at the home of one Elimusaria Mkiro (P.W.S) at .Mbokimu in Moshi Dis.trict. It is _undisputed that among the residents of_P.W.S's home was one Joyce d/o Christosia, who ·.' was PoWoS's sisfer-in-la'!"• - 2 - It is common ground that both the appellants and

the other person who was acquitted were r.e,..,t :::r.:-i.+-s of Mbokiinu locality at the material time. It is undisputed that liquor was available at the party and that the first appellant and the other person who was c. ·: 0 • • ·_ ,:·'~iJ!°l was among· those who visited PoWo5's home at the material time in the evening. Some time later, that is, early at night on the material day, P.WoS became aware of the absence of his sister-in-law and he searched for her but in vaino The person who was acquitted was still present at PoWoS Is home at the time of this search but the first appellant had already left. Furthermore, it is common ground that the following morning, that is, on the morning of the 2nd January, 1978, PoW.3 (Estomee Luyana Meta) who was also a resident of Mbokimu, went to ask the first appellant and the other person who was acquitted, to assist him to cut down a tree in his shamba. Both of them complied. It is also undi-sputed. that as the three of them were engaged in cutting down the tx:·ee: PoW.5 noticed that the pair of shorts wearing that the first appellant was was soiled and blood stained i--- in front 'in the area of the tJ.ies. Upon being asked about this,. the first appellant .informed P oW. 5 that he had raped a girl the previous nigh to He nained the girl as being the daugther of one Enael Meta. On the same morning of the 2nd January, 1978, the dead body

of PoW.5's si.ster-in-law,was discovered in a banana grove near PoW.5's home. She had been raped and brutally manhandled. The police were informed and they visited the scene, collected the dead body and picked up a stick which was found·· in the vicinity of the dead body. Late:r, the appellants and the other pe;,:-son who was acquitted, were apprehended by the police on information received~ • • -o o o • o o • I 3-•• - 3 It is common ground that in the course of the investigations, the po.lice took blood samples from the appellants and the othe·r person who was -~cquitted as well as from the deceased. The police also seized the blood stained pair of shorts which the first wearing appellant was t_ at the time of assisting P.W. 3 to cut the tree mentioned earlier ono They also seized a belt of the seeond appellant together with his pair of trousers. All these things-, that is, the blood samples, the blood stained pair of shorts seized from the first appellant, the belt and the pair of trouser·s: of the second appellant, together with the stick picked up in the vicinity of the dead body were sent to the Government chemist for chemical analysis and report. Furthermore, it is undisputed that a post mortem examination was made on the .dead body of the deceased and a report was prepared emboding the findings made on that exc1.min.~tiono It is common ground that the first appellant

made a caution statement to the police after his arrest apparently implicating himself and the second appellant. From the proceedings in this court and the court below, the following primary and secondary facts are in dispute between the .parties: The prosecution alleges that the first and second appellants were involved in the brutal raping and killing of the decea·sed and that the pair of shorts of the first appellant got :soiled and blood stained in the course of that raping ·and killing. :fhe fi-r-st appellant denies the allegations. He ~laims to have left P .-W o 5' s home in peace and without seeing or -t;a.~king to the deceased. The second appellant on his part puts fortn an alibi asserting that on the material day he never visited P.W,.S's home . bu_t spent the entire evening and night at his home. I - 4 - The first point for consideration and decision in this case is whether both appellants or. any one of them took part in raping apd Killing the deceased. The learned trial judge considered this potnt and stated in respect of the first appellant as follows:- .. •,l "In considering the cautioned statement the first accused made to a police officer I am mindful of the contradictions in the statement which consists of denial of any involvement in the killing and what amounts to a confession· to the killingo For this reason I will not act on the confession in so far as the

first accuse~ is concerned except where it is fully corroborated by other independent material evidence.". The learned trial judge went on to state in another part of his judgment in respect of the first appellant:- "There is then the evidence by Estomee Luyona Meta (PoWo3) that the accused confessed to him on the early morning of 2nd January, 1978, that he had raped a gir 1 but the accused mentioned the girl to be one Anoel Meta's daughter. The accused admitted in his police statement to have made that statement to Estomee but at a later stage .in the same statement he stated that the girl he participated :i.n raping was the deceased Joyce Christosiao This confession is supported by the . evidence contained in the Chemist~a 1.eport to the effect that on examination of the accused's pair of shorts it was found to have the same blood group as that of the deceasedo This corroborative evidence in my view irresistably points to the accused to have been one of the people who raped the deceased., There is then the first accused's police statement that the deceased was raped and her vagina was torn towards her rectumo This statement is corroborated by the findings of the doctor who examined the body and found the same tear on the deceasedo Certainly, the accused could not have had such a clear description of the tear unless he had seen the tearo When this fact is considered together

with the accused's police statement that the deceased was killed and raped, and taking into account the other facts I have found established I have come to the firm conclusion that the prosecution has proved beyond reas0nable doubt that the first accused took part in the rape and killing of the deceased."., With regard to the ,~cond appellant, the learned trial judge stated as follows:" •000000/50. - - .5 - "As for the second accused, I have already found it established that he went to Elimusaria Mukiro's house in the company of the 1st accused around 7.30 p.m. and that the deceased was at the time ' . still at the house. I have also found it• established that he left the house with the first accused soon afte~ and that about½ an hour later the deceased could not be seen in the house. There is then the evidence that a blood stained leather belt was seized from his .house and that on being chemically examined it was found to have human blood stains. Although the human blood group could not. be determined by the Chief :chemist becAuse of its insufficiency, the evidence to some extent corroborates the first accused's police statement that the second accused was one of those who participated in the rape arid killing of the deceased with him. When this fact is. considered together· with the fact that the 2nd accused was in the company of the first accused just before the. deceased'

s disappearance was ·discovered, and also_ the faet that·the first accused confessed to raping and killing the deceased with the 2nd accused, the evidence irresistably points to the 2nd accused to be one of those who raped and killed the deceased with the first accused. As the second accused offered no explanation at all as to how the human blood found its way to the leather belt found in his house I am left with no doubt at all that he was one of the deceased I s killers.". It is apparent that the learned trial judge convicted the first appellant on the evidence of the caution statement which he made to the police, corroborated by other pieces of evidetree, such as the visit by the first appellant to the deceased 1 s horn~; the blood stained pair of shorts, the confession made by the first appellant to P.W.3 and the stick found in the vicinity· of the deceased. It is also apparent that the learned trial •judge convicted the second appellant on the strength of t}:le caution stateme_nt made by the first appellant to the police, -supported by the second appellant's visit to the deceased's home, together ·with the blood stained belt • . It is not in dispute that the first appellant made the c 9ution statement to the police in 1979 and that it amounts to a confession made to a police·officer. •o•••Oo•ooe6/. 1' • r' - 6 This court takes, judicial notice of the fact that the law

of evidence regarding admissibility of confessions made to police officers was amended with effect from 1st December, 19-80. _ Prior to the amendment of section 27 of the Law of Evidence. Act, 1967, any confession made to a police officer was inadmissible as evidence against an accused persona The position was changed under the amendment which made confessions voluntarily made to a police officer by an accused·person admissible as ~vidence against that person. The questio'n now arises wheth_er· ,the confession made by the first appellant is admiss:i,ble as evidence against him .. Mr. Mtingele, learned State J\t";orney, has submitted that the admissibility of a confession made by an accused person is determined with reference to the date when the confession is tendered as evidence at the trialo In the present case the confession by the first_ appellaht was tendered at the trial on the 16th September, ·1982, that is, about two years after the amendment to section 27 of the Evidence Act came into effect. According to Mro Mtingele, ther!3fore, the first appellant's confession was properly admitted under the amendment by the learned trial judgee With due respect to , the learned _State A+:J.._o•::-'n."./, we do not think that he is correct on this pointo We are of the considered view that the admissibility qf a confession made by an accused person has to be determined with reference

·tc the date when it was made. In the present case, as already mentioned, the confession was made in 1979, / that is, slightly over a year before the amendment to section. 27 came into effecto This means therefore that the confession , cannot be admissible unless the amenrlment is retro spec ti ve or ,contains a SI eC'!.:. 1.c provision allowing such a confession to ;, be admitted at the trial _of the first appellant. It is apparent that the amendment to section 27 is not retrospective and does not ••ooooe/7•• . - 7 - contain any specific provision allowing for the admission of a confession such as thise With due respect to the learned trial judge, therefore, we find that he erred in admitting and acting on the confession of the first appellant. What then is the effect of excluding that confession? We start with the second appellant. As _noted earlier, he ~as,convicted on the strength of the confession as corroborated -by his visit to the deceased's home and the finding of human blood stains on the belt seized by the police from him. In the absence of the confession, we are left with the two pieces 0f evidence which, in our view, raise suspicion only but are quite .:ansufficient to support the conviction against the second appellant. With regard to the visit, the. second_ appellant was not the only person who visited the deceased's home on the material day and it cannot be said

that every visitor was impl~cated with the death of the deceas~do As to the blood on the belt, its group could not be ascertained by the Government Chemist and so it cannot be said that the blood.stains originated from the deceased and no other . person. Moreover, there was no evidence to suggest that the appf;:!llant was wearing a belt when he visited deceased's home. Mr. Mtingele·• s subf!1ission that the second appellant's failure to explain the blood stains Qn . the belt as suggestive , of guilt is . baseless because, unlike the first appellant, he was not asked to expl_ain the presence of the blood stains on his belt. Taking .....,, -into a~count all these fact0rs, we are satisfied that it is unsafe to sustain· the conviction of the second appellan~. With regard ·to the. first appellant, the posi t.i:on is different~ The confession he made to the police was not the only -confession made by himo He also confessed to P.W.3 when asked to explain the presence of dirt and blood stains on his pair of shorts. The fact that he named a different girl other than the deceaseo as a victim f' ' - 8 - diversionary tactic on his part fiimiia.r to the. one he'ma<le to one of the police officers (P.Wo1) when.he told him, in the course of· interrogation, that his pair of shorts got blood stained while he was slaughtering a goat. The confession by the first appellant td PoWo3

is·eorrobor~ted . . by ample evidenceo There is the human blood stains found on the front of his pair of shortso The analysis by the Government' Chemist shows beyond doubt that the blood stains were of the same group as that of the deceased, that is, Group A which was different from the blood group of the first appellant which is ·Group "B" Rh· + ve. There is also the stick which was found in the vicinity of the dead body. The first appellal'lt had taken it rrom the home of P.W.4 (Oforo Mapungai) the previous year •. Furthermore. there is evidence to the effect that the first appellant had visi t;:ed ttfe deceased's home and the deceased disappeared from her home about the time of the departure of the first appellant. For slightly different reasons, therefore, we agree with the learned trial judge that the first appellant took part in the brutal raping and killing of the deceased. clsion is wh-eth~.r the first appellant had malice aforethought in killing the deceased. Mro Shayo, learned advocate for the first appellant; has submitted that the learned trial judge erred in not considering intoxication as a defence available to the first appellant. Although it is correct that the learned trial judge did not specifically consider the defence of intoxication in his judgment, it is apparent that . he directed the assessors on the point. That being the position, we are satisfied that

the learned trial judge must have, by implication, considered the defence of intoxication in his judgment and, like the assessors, rejected ito On bur part, we cannot say \ ;I " V - 9 :-' that the learned trial judge erred in rejecting such a defence. There is no cogent evidence to suggest that the first appellant .,r ' could have been drunk at the time of killing the deceased. Taking into consideration th~ '1rutal nature of the killing of the· deceased, a reasonable tribunal is bound to find, as we do, that the fi~st appellant had malice aforethought in killing the deceasedo He was therefore properly convicted for the offence .charged. In the final analysis, therefore, we allow the appeal of the second appellant, qu~sh his conviction, set aside his sentence and direct that he be released from lail forthwith unless detained therein for some other lawful cause. As to the first appellant, we dismiss his appeal in Y.. M. Mo MWAKJ\.SENDO

JUSTICE OF APPEAL