20140326 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL CASE NO. 59 OF 2013 (Original Criminal Case No. 492 of 2011 of the District Court of Nyamagana District at Nyamagana) ' DEBORA D/0 MAIRA .................................................... APPELLANT VERSUS THE REPUBLIC. Ill II ••••• I 111 ■ ■■■ I • • • • • • • • • • • • • • 111 ■ I ■■■ •• I ■ I ■■ I ■ I ■■ I .RESPONDENT JUDGMENT BUKUKU, J.: The appellant, Deborah Maira was convicted of the offence of child stealing contrary to section 169 of the Penal Code by the District Court of Nyamagana, at Mwanza in Criminal Case No. 492 of 2011 and was sentenced to a term of five years imprisonment. Aggrieved by the said decision, she appealed to this court. The facts of the case are brief and straight forward. On 18th September, 2011, PWl Yunis d/o John was sent by her aunt to go to her grandfather to get some potatoes from the farm. She went there and was given the said potatoes. Since her grandfather told her to 1 i i • I .'i . ' return for some more, she again went back to the farm. At around I 11.00am PWl's aunt called her father inl law to enqui~e if PWl was still at :' I the farm, since she needed her back fqr some erra~ds. Her grandfather 1. confirmed to be with PWl and after he had given! her some potatoes, i PWl left her grandfather's home. i ! According to PWl, on her way back, she passed near the accused 1. i house. When accused saw her, she begged PWl to sell her the potatoes : I she had. PWl told the accused that dhe was not ~elling the potatoes. PWl further testified that, the accused !then asked h~r to assist her get a I , pot inside her house. She did as she was told and i~mediately when she i I went inside the house, the accused pushed her into a room inside her I ; I house and locked the door. PWl furth:er narrated t hat, while inside the 1 I I I room, she shouted for help but to no avail, until night' came. The following ' day, the accused allegedly brought herj' some food i sardines and ugali. ' . PWl further said that on that second! day, she heard the voice of her i I mother and aunt looking for her outside'. She again s,creamed for help but 1 could not be heard. On the third day, s?e was taken to a place where she I I was forced to take a bath, and when. she refused, she was beaten by 1 ·' I ! 2 accused. She then took a bath and was !returned to the room where she Ii I was confined. ! I ! i 11 I I I On the following day, she requested the accus~d ro take her for a Ii I short call of nature. The accused opened the door for her; and showed her the toilet and left her there. When insidJ the toilet, s~e ~anaged to peep i I • through, and having seen the coast was clear, she mainaged to escape 1 1 although the accused tried to stop het. PWl averred that, when her i I I efforts to stop PWl to escape failed, fhe accused 6ffJred PW1 T.shs. 1i . I . I: ' 1,000/= so that she should not divulg~ where she was. PWl took the money and then she left for home and ah the way, sh~ Jought biscuits for I ; T.shs. 500.00. As she was approaching home, her aunt saw her. When 1: I I asked where she was, PWl explained her ordeal ~md the matter was i l reported to the police hence the arrest ~f the accused a~d finally charged and convicted. , 1 1, On this appeal, the appellant has fronted six g~ou. ds of appeal but during the hearing of the appeal, cou~sel for the ~pJellant decided to 1•, ! I . argue only two grounds which are the fir~t and second namely:- ! I I 1. That, the learned trial magistrate lhad erred hiiJf in laW and fact after being satisfied that, the vi~im (PW1) pjssessed sufficient intelligence to give her evidenc~! under oath I hence she did not Ii I properly administer a legal sound ~voire ,, dire test) and a solemn oath i' I, to the witness before taking her te$timony. i I IJ 2. That, the learned trial magistrate did highly overloo the law and fact 1 1 I I when she held that the appellalrt guilty (sicc) as charged after I believing and acting upon a cdntradictory, ~n cogent and /or ! I implausible evidence regarding the! first felony reported to the police station, offered by PW2 and Pi4, on their tJstimony in court without weighing out their ere!: d·b·1·ty 1 11 be,ore 4= [ entering unfair I. ! conviction. When the appeal came up for hearirg, the appelllan ' was represented by Mr. Makwega, learned advocate. On ~is part, Mr. Sari~e, learned State , I Attorney who represented the respondedt Republic, from the outset opted ! I to support the appeal. He sub. mitted tha~:.' the prosecu~ioJ's case was built !, I on PWl's testimony. He fully agreed \A{ith Mr. Makte a, that, the legal requirements i~ admitting PW l's testimfy were not ~ollfwed by the trial court. That aside, Mr. Sarige submitted that, there were contradictory 1 i I 4 I I :[ !1 statements by the prosecution witnesses to wit, that of PW2 and PW4. , 1 I I 1, He also challenged the testimony of P\1\(2 to the eff ct that, while PW2 /! said they knew where PW1 was, this pikce of evide11ce was contradicted I I by that of PWS who said they were led. by PW1 to the place where she Let me now go to the substance of the appeal. T e trial court was f: satisfied that the offence of child stealin g was proved beyond reasonable 1 1' I I ·. I double on the evidence of PW1, PW2) PW3, PW4, and PWS. In my considered opinion, the most crucial w:;tness in thisl Jse is PW1 (the victim). That said, I can envisage twoi fundamental' pJoblems with the I ! evidence depicted from the record. The:,first is the non compliance with I . section 127 (2) of the Evidence Act (CaJ 6 R.E. 2002), nd second is the I contradictory statements of the prosecuticim witnesses. '1 'I "I With regard to the first ground of appeal, M . N'lakwega learned I counsel for the appellant has faulted the trial court for its omission to carry out "voire dire" examination before deciiing on how :,thJ evidence of the , I complainant would have been received. r\must out rig1tly say that, I am at one with Mr. Makwega, learned advocate!!for the appetnl that, the record : I I I I 5 at the trial court is very clear on this lomission. Se€tion 127(2) of Cap 6 I I I provides:- I I : I "(2) Where in any criminal caus~ or matter ~ child of tender age 1 i I called as a witness does not, in t/jle opinion of' the court, understand : I I the nature of an oath, his evidence may be ; received though not 1 I : ! given upon oath or affirmation, i~ in the opinion Jr the court, which • i I opinion shall be recorded in thJ proceedings; I I. lie is possessed of 1 • sufficient intelligence to Justify tfe reception !or his evidence, and I ! understands the duty of speaking the truth. " I I I i I 1 I I It is also provided in subsectioh (5) that, for the purposes of I • I '. subsection (2), the expression "Child of ~ender years" lm~ans a child whose I I I apparent age is not more than fourrt:een years. i sol subject to the I . . I 1· I . • mandatory provisions of subsection (2) above, a child ofi tender years can I I : : be a competent and compellable witnes$ in criminal rofeedings. The bar from testifying from a child of tender y~ars who doe~ nft understand the : • I nature of an oath is not in possession of ~ufficient intel lig~nce, which would 1 enable him to discern the difference beJveen right a~d irong, is justified I I on the same basis as the statutory defense of immatu~ity under section 15 I I I (1) and (2) of the Penal Code for childreni of almost similar age. I I II I 6 i 'i i I I I I I I I: I I I I I I PWl (the vic~im) was 11 years bYi then. She wf s ther~fore a child of tender years. Section 127 (2) above, !.;and case laf, require that, after 1 1 I finding that, a child does not understand.· the nature of a oath, a court has ji :. I I 1 I to satisfy itself first that the witness is possessed of sufficient intelligence, ·. 11 I II , I and secondly, that the witness underst~nds the duty of telling the truth. (See: Godi Kasenegala v. R ; Cri~inal Appe~I I o. 10 of 2008 i: I (unreported). In the present case, what happened is this:- ji 1 1 I I "Court: The witness who isl'. the victim is I j child of 11 years old therefore this court thave to condu 1 I I ) a· voire dire , I I I (sic) test under section.(sic) What is your name? I My name is Yunis d/o John 11 I I am a student at Mkolani PriJr,y School. : I am in standard five. , I i· I I My father's name is John my mbther's name is Rache/. I I 1 : I I Court: Mrs. Anna Ngussa from social welfafie, 'four officers is present (sic) in court accordJg to the law ~Juirement''. ' I I 7 I I I :' I I I . I I I And then the prosecution case opened by Yu~is I John being sworn and examined. The trial magistrate di.d not make a specific finding on I I whether PW1 was possessed of sufficier;it intelligence, and second that she I I ! understood the duty of speaking the truth. I I In the case of Kinyua V. Republic [2002] 1 KLf 256 quoted with approval in the case of Godi Kasenegela V. Republic, {supra) it has . I been explicitly been explained that, the voire dire test has two steps to be . . ! taken and is summarized as follows:- I I "(a) The court shall first ascertain wheth~r I the child understands the nature of an oath. An in~estigation to this effect must be done by the court imqediately the child witness appears in court......... 1 I (b) If the child does not understand the nat~r) of the oath, he or she is not necessarily disqualified lfrom giving I I evidence'~ I I I The court may still receive the evidence if it is satisfied, upon I I investigation, that the young person is possessed of ~u,cient intelligence and understands the duty of speaking the truth. This investigation must be . I I 8 I I I I : i ' . done and when done, it must appear ion record. JhJe the court is so satisfied, then the court will proceed to ,lrecord unswdrn evidence" from the 1 I I I child witness. Further, in John Muirutil V. Republit: [11983] KLR 445, · I j I the court reemphasize, inter alia that:- I "(2) It is important to set out fhe question, afd answers when deciding whether a child of tend~[ years understa\nds the nature of Ii an oath so that the appellate coyrt is able to decide whether this i important matter was rightly decidfd (a). ........... The correct procedure frI the court l° rlfow is to record I I the examination of the child witness as to the sufficiency of her ~ . ,,. ~ ~- fy ~,,. V f ;,1 I I d ,I -~ ,1· 1n'-e"1gence tO sat7S u ,e recept7Q'(I o ev1uence an unuerstanu1ng I,! 11 I the duty to tell the truth'~ ' 1 1· In this particular case, and as riJhtly submitti by Mr. Makwega, i: I learned Advocate for the appellant, the steps as sum~arized in Kinyua V. Republic (supra) were not fully com~:lied with. Th~ t~ial court did not . ,· , I II record whether PWl was possessed wi~h sufficient imtelligence to satisfy ]I I the reception of her evidence. That was ,surely a defect. It is now settled 1I I law that evidence taken in contraventioh of that provision I is illegal and 9 L ' . !; ' I must be discarded. Since the trial courti did not addJesj this requirement I : I properly, before receiving the evidence ·of PWl, the~ sµch evidence was wrongly received. In the event, I am fJrced to expJngi the evidence of PW1 because of this irregularity. Also iee the deci~ion~ in the cases of 'I Kashan Bayoka V. Republic, Crimi~al Appeal ,N,. 176 of 2004; I ' Omary Kurwa V. Republic, Criminail Appeal NJ. 89 of 2007 and Wilbard Kamangano V. Republic CriLinal AppeJI Jo. 235 of 2007 I I I I I [all CAT and unreported], just to nam~ but a few. I i I . . I Now, having expunged the eviderace of PWl,! wrat remains? Mr. I Makwega had argued that, once the evi~ence of PW~ iS expunged, then the rest of the testimonies remain to bel' heresay. I fjlly _subscribe to that , .1 I because, this appeal stands or falls depending on the' testimony of PWl. i •I I' i The rest of the testimonies are heresay.lThe other r~mJining prosecution ; I I I witnesses were not eye witnesses to the offence allegetlly to have been . I ! committed by the appellant. :I '' As earlier mentioned, there is ~Isa the issye of contradictory , I i testimonies on the part of the prosecutioJ witnesses. I !will start with PW1. i I I I I' i. i I In her testimony, she told the court thcl)t she heard ~erl mother and her aunt's voices outside, while looking for her. PW3, Ros.emary John, the I . 10 'i •• • mother of PW1 testified that the incideht took place on 15th September,. I 2011 while she was away in Musoma and came back ori 18th September, 2011 and found PW1 was not around. Which mean1, then the incident occurred, she was not around. If that is the case, ho~ aome PW1 heard I I her voice from inside? Secondly, accordidg to the particul~rs of the offence I I contained in the charge sheet, the incident of child stealin~ occurred on the 18th September, 2011, and not 15th September, 2011 as testified by PW3. Again, at page 14 of the proceedings PW2 is recorded to have said that they knew where PWl was. If that was the case, how come they said she ! I was taken forcibly if at all they knew where she was. Andi more so, if they . i I knew where PW1 was, why then did PWS say they fe1e led by PW1 to the place where she was? Yet still, in h¢r testimony, PW3 told the court that, the following day after the incident ,her father repoJed the matter to the police and was given an RB. But in his testimony, PW2 never mentioned about the RB. I For the reasons stated herein above, I find that, if the trial magistrate I I I had considered closely the discrepancies this court has shown, she would have come to a different conclusion. 11 I • • I . In the event, I allow the appeal, ~uash the co~vidion and set aside the sentence of five years imprisonmejt. The appell6nJ is to be set free I forthwith unless otherwise lawfully held.; Ordered accordingly. ~ ••••••••••••••••••••••••••• A.E. BUK~KU i JUDGE Delivered at Mwanza This 26th March, 2014 12 ,, i. i