20161215 TZHC Arusha

f' ' . I' IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA DISTRICT REGISTRY AT ARUSHA CRIMINAL APPEAL NO 16 OF 2016 (From Arusha Resident Magistrates' Court Economic Case No. 26 of 2014) i DEODATUS JOSEPH ................................................. APPELLANT VERSUS THE REPUBLIC .................................................... RESPONDENT I JUDGMENT 18/08/2016 &04/10/16 MWAIMU, J. Before the Arusha Resident Magfstrates' Court Deodatus Joseph faced two counts of the offence of Unlawful Possession of Government Trophy contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act, No. 5 of 2009 read together with section 57 (1) and paragraph 14 (d) of the First Schedule to the Economic and Organised Crimes Control Act, Cap 200 RE 2002. I th It was alleged that on the 10 dai of July, 2014 at Mererani Kilima hewa street within Simanjiro District, Deodatus Joseph was found in unlawful possession of two (2) impala meat valued at Tshs. 1,248,000/= and two (2) dik-dik meat worth Tshs. 8QO,OOO/= all the property of the 1 Government of Tanzania. After a full hearing the accused was convicted with the two counts of the offence and was sentenced to serve twenty (20) years imprisonment for each count. The trial court also ordered for the confiscation by the government of motor cycle Toyo make with registration No. T117 BWJ, a knife and a machete. Deodatus was not satisfied therefore he preferred an appeal to the Court. Mr. Kinabo F.S. learned counsel for the appellant, lodged five . grounds of appeal against the judgment of the Resident Magistrates' Court as follows: 1. The judgment of the trial court does not contain the point or points for determination, the decision thereon and the reasons for the decision. 2. The learned magistrate erred in holding that possession of the alleged trophies was proved beyond reasonable doubt. 3. The learned magistrate misdirected himself in shifting the burden of proving "possession" to the accused person. 4. The learned magistrate did not advert his mind to the fact that disposal of the trophies was allegedly ordered by the court which was not conducting the proceedings. 5. That there are special mitigating factors to warrant intervention by the High Court to pass a sentence less than the minimum in terms of section 112 (3) of the Wildlife Conservation Act, 2009. The learned counsel argued the grounds of appeal seriatim. On ground one he told the Court that the judgment of the court did not 2 comply with the legal requirement provided by section 302 (1) of the Criminal Procedure Act. According to him the trial magistrate merely reproduced the evidence on record and then convicted the accused. Further, he said, the issues which the court would have addressed should have been whether the appellant was found in unlawful possession of government trophy and whether the alleged meat was government trophy. Failure by the court to address those issues he said, failed the judgment. On the second ground the learned counsel challenged the judgment of the trial court on ground that the evidence adduced was of game wardens alone and that there was no independent witnesses. Moreover, he said the evidence adduced did not connect the appellant with the offence. On the third ground Mr. Kinabo contended that while the burden of proof in criminal cases lies to the prosecution, the trial court shifted the burden to the appellant instead of dealing with the prosecution evidence to establish whether it proved the offence charged beyond reasonable doubt. Addressing the fourth ground he was settled that there was no proof that the meat at issue· was destroyed by the primary court as no primary magistrate testified in court to establish that fact and that if there was such evidence the primary court which destroyed the meat had no jurisdiction to try the matter. Also he said there was no order of the trial court to that effect. Absence of the evidence of the primary court magistrate he said creates doubt on whether the meat was ever destroyed. Arguing the fifth ground in the alternative, Mr. Kinabo told the Court that even if the Court would be satisfied that the appellant was correctly 3 convicted; it would be proper for the Court to invoke its power under section 112 (3) of the Wildlife Conservation Act as the meat found in possession of the appellant was in small amount. In that regard he said that the Court has discretion to reduce the sentence below the minimum. What he advanced as special mitigating factors are; that the appellant is married and has one child. Being young he still has the opportunity to change. Further, that the appellant has already served one year of his custodial sentence. In reply Ms. Mtenga opposed the appeal. She supported the judgment of the subordinate court and countered all the submissions made by the learned counsel for the appellant. I would deal with the grounds of appeal seriatim serve that ground 2 and five will be dealt with last. In ground one Mr. Kinabo claimed that the judgment did not comply with the law as it has no points for determination, the decision and the reasons for the decision. Section 312 of the Criminal Procedure Act provides for what should be contained in a judgment. It states: " (1) Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Ac~ be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be 4 dated and signed by the presiding officer as of the date on which it is pronounced in open court. (2) In the case of conviction the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced. (3) In the case of an acquittal the judgment shall state the offence of which the accused person is acquitted and shall direct that he be set at liberty. "(Emphasis added). From the provisions of subsection (1) of section 312 it is quite true that that a judgment must contain the point or points for determination, the decision thereon and the reasons for the decision. The issue is whether the judgment impugned did not contain those aspects. On page 3 of the typed copy of the judgment the trial magistrate wrote: "The offence, with which the accused is charged of is constituted when a person is found in unlawful possession of government trophies. By unlawful possession it means that a person has not fulfilled the legal requirement to possess the same as has been mandated by section 86 of the Wildlife Conservation Act ... " (Emphasis added). I think this statement suffices to contain the point for determination. It raises the issue of when a person would be found in unlawful possession of government trophy. 5 The decision made by the trial court is that the appellant was guilty of the offence charged and the reason for the decision is that from the evidence on record the appellant was found in unlawful possession of the government trophies. For the stated reasons ground one of the appeal fails. In ground 3 Mr. Kinabo learned counsel claimed that the trial magistrate misdirected himself by shifting the burden of proof on possession to the appellant. I think the basis of his assertion is found from the following words found at paragraph one on page 3 of the typed copy of the judgment. It states: "According to the wording of the Act, once a person is found being in unlawful possession of what has been declared by the Act as "Government Trophy (vide section 3 of the Wildlife Conservation Act) then it is his duty to prove his possession is lawful subject to the provision of the laws." I agree with Mr. Kinabo that this statement suggests that an accused is supposed to prove his innocence. It is trite law that an accused has no duty to prove his innocence. Section 112 of the Evidence Act RE 2002 the law stipulates that: "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any other person. " 6 Under section 100 (1) of the Wildlife Conservation Act the burden of proof can shift to an accused person in certain instances. Section 100 (1) reads: "100. (1) In any proceedings for the offence of unlawfully hunting, wounding, killing or capturing any animal contrary to any provision of this Acl the burden to prove that the animal was hunted, killed, wounded or captured pursuant to and in accordance with the terms of a licence, permit or authority granted under this Act shall lie on the person charged." So if the charged offence would involve unlawful hunting, wounding, killing or capturing any animal contrary to any provision of the Wildlife Conservation Act then burden of proof would lie to the accused. However, while the law has allows shifting the burden of proof to an accused on certain offences, it is my considered opinion that those offences which have not been mentioned there at, falls within the general rule of burden of proof in criminal proceedings that is, the prosecution is duty bound to prove a case beyond reasonable doubt. The offence of unlawful possession of government trophy is not an exception. In the circumstances I think the trial magistrate misdirected himself in raising the principle in the case which was before him because the 7 offences the appellant was charged with is not one of those stipulated under section 100 (1) of the Wildlife Conservation Act which is an exception to the general rule. I have found that although the trial magistrate misdirected himself on the burden of proof in criminal cases, reading of the judgment I found nowhere he based his conviction on the weakness of the appellant's defence. His finding was based on the prosecution evidence. In paragraph 2 page 3 of the typed copy of judgment the trial magistrate had this to say: "The evidence adduced by the prosecution, after I thoroughly examined it, it leaves no doubt to me that the accused was indeed found in possession of two impalas' meat and two dick-dick meat." The trial magistrate also dealt with _the appellant's defence and found it without merit. On paragraph 3 at page 3 had this again to say: "The defence by the accused to me holds no water as I do not see any reasons why this government servants (sic) would associate him with this case if he had not committed the offence charged. " 8 Therefore in spite of the misdirection in his thinking the trial magistrate did not apply the principle in arriving at his decision. He underwent the normal process by believing on the prosecution evidence. In those premises ground 3 fails. In the fourth ground Mr. Kinabo contended that the trial magistrate wrongly dealt with the disposal of the trophies ordered by the court which was not conducting the proceedings. He held the view that in the circumstances, there was no proof of destruction of the trophies as the law required the trial magistrate to consider the aspect. However, he did not cite any law to that effect. Section 101 (1) of the Wildlife Conservation Act read as follows: ''Subject to section 99 (2), at any stage of the proceedings under this Ac~ the court may on its own motion or on an application made by the prosecution in that behalf order that any animal, trophy, weapon, vehicle vessel or other article which has been tendered or put in evidence before it and which is subject to speedy decay, destruction or depreciation be placed at the disposal of the Director." 9 This provision means that the trial court has power to order for the disposal of an exhibit which is a subject of speedy decay destruction or depreciation at any stage of the trial. The word "court" has not been interpreted under the Wildlife Conservation Act. But by reading the word in the provision the interpretation is that court stipulated is the one conducting the proceedings. As correctly argued by Mr. Kinabo, the record of the lower court shows that the exhibit, that is, the two dik-dik and the two impalas were recorded in an inventory witnessed by the Simanjiro Primary Court. The inventory was produced by the prosecution and admitted by the trial court as exhibit "P4a". Although the inventory was prepared, there is no order of the primary court showing that the exhibit was disposed of. However, I would say that although there is no order for disposal as the trophies which were meat and a subject of speedy decay, the inventory was sufficient to prove that the trophies alleged to have been in the possession of the appellant were dik-dik and impalas. Mr. Kinabo's dispute is that the process was not done by the court which conducted the proceedings. I think while the law mentions the "court conducting the proceedings" in practice inventories have been endorsed by 10 courts within the jurisdiction where the offence has been committed. In this case the inventory was endorsed by Orkesmet Primary Court. I think under the circumstances which prevailed at the material time there was no Simanjiro District Court which would have dealt with the case. It started operation in 2015. That is why the case was instituted at the Arusha Resident Magistrates' Court. The meat which was the subject matter of the offence was a subject of speedy decay. Tlile only option the prosecution had was to take the meat to the nearest court for the endorsement of the inventory. It is my view the fact that the inventory was endorsed by the primary court did not prejudice the appellant's rights. Therefore ground four also fails. I would now revert to ground 2. In this ground Mr. Kinabo urged that the offence of unlawful possession of government trophy was not proved beyond reasonable doubt. In order to resolve this ground it is pertinent to go through the evidence on record. According to PWl Saiguran M. Mollel a PW2 Benjamin Sarakikya, PW3 Jonas Deogratius and PW4 all game wardens, received information from an informer that the appellant was in possession of government trophies. After receiving the information, they went to the scene at Kilimahewa Street at Endyamitu Ward Mererani. 11 When they approached the place PW1 said he saw the appellant untying the sulphate bag to unload a sulphate bag. When the appellant saw them with uniforms, he ran away leaving behind the motor cycle. They· chased and arrested him. They took him to the place where the motor cycle Toyo make and red in colour with Registration No. T 117 BWJ with a sulphate bag was parked. At the scene they opened the sulphate bag and found game meat, a knife and a machete. PW1 tendered a certificate of seizure which was admitted as exhibit "Pl". The machete and the knife were admitted as exhibit (P2) and (P2b) respectively. PWS who took the appellant's statement tendered it and was admitted as exhibit "P6" after an inquiry was conducted as the appellant retracted the cautioned statement. In his defence the appellant said he was arrested on the morning of 26 th day of May, 2014 while on his way to work. Also he said that he was taken to the court on 03 rd June, 2014 and charged accordingly. To his surprise the charge sheet read that he committed the offence on the 10th day of July, 2014. 12 After considering the evidence on record I have found that although there is incriminating evidence that the appellant committed the offence, there are material inconsistencies between the dates the accused is alleged to have committed the offence. The charge sheet shows that the appellant committed the offence on the 10th day of July, 2014. But the evidence by the prosecution shows that the offence was ,committed on the 26th day of May, 2014. There is a difference of about fourty four (44) days. The prosecution could not explain this difference. This creates doubt as to whether the appellant committed the offence. Moreover, while the prosecution alleged that the appellant had a motor cycle on which PWl said he saw him unloading the government trophies, and that the appellant told the trial court that the motor cycle did not belong to him, the prosecution did not make any effort to establish as to whom the motorcycle belonged to. With the inconsistence of the dates it does not seem to me that the prosecution proved the offence alleged to have been committed on the 10th day of July, 2014 as per the charge sheet. Not only that even if the dates would have been proper, the offence was committed in town. There was no reason why a person by the name of Praxeda who is alleged to have been selling the meet was not called as a witness. 13 For the fore reasons the trial court magistrate was wrong in convicting the appellant. In that respect the judgment of the Resident magistrates' court is quashed and the sentence is set aside. The appellant is given the benefit of doubt and should be released from custody unless with held for any other lawful cause. M.P.M. Mwaimu JUDGE 04/10/2016 Judgment delivered on this 04th day of October, 2016 in the presence of both parties. (SGD) M.P.M. MWAIMU JUDGE I hereby certify this to be a true copy of the original. C Jc AG. DEPUTY REGISTRAR HIGH COURT ARUSHA ts\P- \1%lh 14