20111125 TZCA Mwanza 1

I~) 'i . I ; '..;\,1:': .~;,- ,1-r' ;, F1 IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA (CORAM: MUNUO. J.A .• MASSATI. J.A And MANDIA. J.A.) CRIMINAL APPEAL NO. 323 OF 2010 CHRIZOSTOM BENYOMA ............................................................ APPELLANT

VERSUS .• THE REPUBLIC ........................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Bukoba) (Mlay. J.) dated the 28 th day of May, 2010 in Criminal Appeal Case No. 58 of 2000

JUDGMENT OF THE COURT 22 nd & 25th November, 2011 MANDIA, J.A.: On 28/2/2000 the appellant CHRIZOSTOM s/o BENYOMA appeared before. the District Court of Karagwe at Kayanga where a charge of Rape c/s 130 (2) (e) and s. 131 of the Sexual Offences Special Provisions Act, Act No. 4 of 1998 was read over and explained to him. When asked to · plead the appellant replied thus:- "it is true,✓ 1 ,. · · The District Court then entered a plea of "Guilty" against the appellant. Immediately after entering the plea, the trial court allowed the prosecution to give an outline of the facts. The facts of the case as outlined by the prosecution show that on 20/1/2000 at about 5 p.m. in the evening the appellant visited one FAUSTIN NESTORY at Kamuli village in Karagwe District. The purpose of the visit was for the appellant to demand from FAUSTIN NESTORY a repayment of sh. 700/= which the latter owed him. The appellant took along with him his friend called BENATUS THONEST when he went to demand his money from FAUSTIN NESTORY. The appellant was paid the money owed to him. He used the money to order a local brew and drank the brew with his friend BENATUS THONEST inside FAUSTIN NESTORY's house. The appellant and his friend BENATUS stayed in FAUSTIN'S house until dinner time Faustin shared dinner with the duo. After dinner, the appellant said he was too tired to walk home. FAUSTIN's wife prepared

a room for the appellant to sleep in. Thereafter FAUSTIN and his wife retired to their room to sleep. FAUSTIN NESTORY has a daughter aged five years who was asleep in another room separate from that which FAUSTIN 's wife had prepared for the appellant. At about 5 a.m. on the next morning, 2 FAUSTIN NESTORY was awakened by cries from his daughter Dorica. FAUSTIN rushed to the room were the appellant was left the previous night. The appellant was not in that room. FAUSTIN then rushed to his daughter's room. There he found the appellant naked and actually in the act of having sexually intercourse with the daughter DORICA. He apprehended the appellant who was still in a state of nakedness. A check on DORICA's female organ found it oozing blood. A neighbour, Mwalimu GORDIAN BAYANGERA passed by FAUSTIN's house and was called in by FAUSTIN to witness the appellant still in the state of nakedness. DORICA was taken to hospital where she was admitted and spent six days being treated for the harm caused on her. The appellant was taken to the police Station and charged. A medical report on DORICA's treatment was tendered in evidence as Exhibit "Z". The medical report shows that DORICA FAUSTIN, aged five, suffered abrasions on the Labia Majora, the vaginal entrance was a bit widened, and blood was coming out of the vagina. The medical report categorized this kind of injury as a "Harm",

and that it was caused by a blunt object. 3 At the end of the outline of facts by the prosecution the accused was asked to comment on the facts. This is what he said:- '~ccd. What has been said is true. " The court record shows that the trial court thumb-printed the appellant's admission. The court called for the original record of trial and indeed the appellant's right hand thumb print appears immediately under the words "what has been said is true. " The appellant was then convicted on his own plea of GUILTY. The accused was shown to be a first offender, and when allowed to say something in mitigation he said this:- '~ccd. I pray for lenience (sic) for I committed the offence after being drunk. " The trial court sentenced the appellant to life imprisonment. The life sentence of imprisonment jolted the appellant. He did two things at the same time. First, he filed a Notice of Appeal against his 4 conviction and sentence by the subordinate court. Then he filed a petition of appeal the heading of which goes thus:- ."I pray to submit my appeal before your honourable high court against the stiff sentence of life sentence imprisonment, which imposed on I (sic) by the trial District Court under the following grounds of appeal." Curiously, though the heading of the petition shows that the appellant had taken offence with the sentence only, the grounds of appeal show that he is

appealing against both conviction and sentence. Even in his address during the hearing of the appeal in the High Court the learned State Attorney appearing for the respondent Republic addressed the court that the appellant is appealing against both conviction and sentence, and the appellate High Court accepted that the appeal was against conviction and sentence. Under Rule 68 (1) of the Court of Appeal Rules, 2009, it is the Notice of Appeal which institutes the appeal in this Court and we accept that the appellant was appealing against both conviction and 5 sentence in the High Court. After due hearing in the appellate High Court, the court found that the "guilty" plea by the appellant in the trial court was unequivocal, that facts were adduced and documentary evidence was produced and the appellant thereafter admitted the correctness of the facts. The appellate High Court found that the appellant understood the nature of the charge he was facing and dismissed the appeal in its entirety. This dismissal irked the appellant even more and he has filed a second appeal in this court. In this Court, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Mr. Pius Hilla, learned State Attorney. The appellant has raised three grounds of appeal, the substance of which is as follows:- 1. that the learned appellate Judge erred in law when he held

that the appellant's plea in the trial court was unequivocal. 2. that the learned appellate Judge erred in failing to hold that the appellant was prejudiced by being charged and convicted under wrong sections and/or wrong statutes. 6 3. that the learned appellate High Court erred ignoring the defence of intoxication and which featured in the facts of the case. Mr. Pius Hilla, learned State Attorney, did not support the conviction and sentence. He argued that penetration, which is an essential ingredient of rape, was not proved so the facts of the case did not show all the necessary ingredients of the case, and the appellant did not know what he is being charged of. Mr. Pius Hilla, learned State Attorney, had filed a list of authorities containing two authorities namely KATO V R 1971 H.C.D. 364 and ADAN V R (1973) E. A. 445 all on the procedure of recording pleas of guilty. The salient features of the authorities are:- 1) that all the essential ingredients of the offence must be explained to the accused person in a language he understands. 2) that the accused's own words used in a plea should be recorded, and in the case of an admission a plea of guilty should be recorded. 7 3) that an admission is not enough to base a conviction upon/ the facts of the case must be stated by the prosecution and the accused person must be given an opportunity to dispute or explain the facts or to

add any relevant facts. 4) that if the accused person disputes guilt in his reply a change of plea must be entered. 5) that if there is no change of plea after an outline of the facts showing that the accused person still admit the facts a conviction should be recorded. What is revealed in the facts which the prosecution outlined in this case? The prosecution outlined the following facts:- 1. that the appellant visited the complainant's father on the evening of 20/1/2000, had a drink and dinner there and spent the night there at the invitation of the complainant's father. 8 2. that on the morning of the following day, 21/1/2000, the complainant's father was roused from sleep by cries from his daughter called DORICA who is aged five years, and slept in a room separate from the one in which the appellant slept, and separate from the one in which the parents slept 3. that on hearing the cries from his daughter, the complainant first went to check the appellant in the room he slept in the previous night and found the appellant missing. He then went into his daughter's room and found the appellant naked and having sexual intercourse with his daughter. A physical check on the victim revealed physical damage to her female organ and blood dripping therefrom. 4. that despite the cries from the victim, and the time it took to search for the appellant first in the room in which he slept

and later in the victim's bedroom, the appellant was caught in flagrante delicto, that 9 is, still on top of the daughter DOR/CA having sex with her despite her protestations. 5. that a medical examination on DOR/CA Exhibit ''Z" resulted in the following finding:- ''Labia Majora abrasions. Vaginal entrance a bit wide + blood. Bleeding per vagina. " 6. that the appellant was arrested and later arraigned in court. When asked to plead he said ''it is true. When the facts were outlined the appellant's comment was "what has been said is true'~ The appellant therefore acknowledged the fact that he was caught in flagrant delicto, and that his act of having sexual intercourse with a five years old girl resulted in abrasions in the orifice of the girl's female organ and that this resulted in bleeding seen physically by the father, a neighbour Mwalimu Gordian Baganyera and the medical officer who conducted the examination on the victim. ,.. . 7. that the medical examination report was properly received in evidence because of the appellant's plea of guilty. Compliance with section 240 (3) of the Criminal Procedure AcC Chapter 20 R.E 2002 of the laws would have come in if the appellant had denied the charge and had dispute the facts to warrant a trial. As we said earlier, both the trial court and the first appellate court found the appellant's plea to be unequivocal. It is only in the

Court of Appeal that the learned State Attorney appearing for the respondent Republic argued that there could be signs of equivocation in the plea by the appellant. The facts which both courts below agreed upon and which we find no reason to controvert, show that the appellant's plea was clearly unequivocal. The learned State Attorney also raised the argument that the facts do not prove penetration which is an essential ingredient in rape cases. We find this argument rather odd. An appellant is found naked, actually having sex a with five year old girl, who after a physical examination by parents is found to have a damaged female organ and 11