20160804 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA .AT ARUSHA (CORAM: RUTAKANGWA, J.A., KILEO, J.A., And MASSATI, l.A'.) CRIMINAL APPEAL NO. 74 OF 2016 THE DIRECTOR OF PUBLIC PROSECUTIONS ........................... APPELLANT VERSUS · ST · 1. SHARIF S/0 MOHAMED@ ATHUMANI ........_................ 1 RESPONDENT · · · . ND 2. SHAIBU S/0 JUMANNE @ MPUNGI@ MREDI ............. 2 RESPONDENT 3. MUSSA S/O JUMA MANGU ......................................... 3RD RESPONDENT 4. JALILA S/0 ZUBER!@ SAID .................................. ~ ••. 4TH RESPONDENT . - TH · 5. KARIMU S/O ISSA KIHUNDWA .................................. 5 RESPONDENT 6. SADICK S/O MOHAMED JABIR@ MSUDANI@ ANUMBI ................ :; ........................ 5TH RESPONDENT 7; - ALLY S/O MUSSA@ . MJESH ......................................... 7TH RESPONDENT . . . (Appeal from the rulings of the High Court of Tanzania, at Mos hi) (Maghimbi, J.) Dated the 20 th & 26 th day of January, 2016 in DC. Criminal Session No. 12 of 2014 JUDGMENT OF THE COURT 3rd & 5th August, 2016 MASSATI, J. A.: The respondents are jointly charged with one count of murder contrary to section 196 of the Penal Code, in the High Court at Moshi. Their trial began in full swing on 5/+0/2015. On 20/1/2015, the prosecution called one PF 16876 Insp. SAMWEL HUMPHREY MAIMU as a witness. {PW9). In the substance of his testimony, he identified one motor vehicle with Registration No. T. ~00 1 CKF Silver in colour, make Range Rover, which he found when he visited the scene of.crime as one of the investigators from the Regional Crimes Officer's office in Kilimanjaro, which allegedly belonged to the deceased. When he was about to tender the . car as an exhibit, the defence objected. After hearing·. the parties on the objection, . the learned trial judge upheld the objection and ruled that the witness was not competent to tender the car as an exhibit. On 25/1/2016, PW9 went on to testify on how he went on to collect othec__ exhibits. He then went on to identify a register of exhibits which he ·handed over to· one Sgt Hashim, the then Himo Police Ocs. When he was about to tender that register. as an exhibit, the defence . counsel again objected. Again, after hearing the _parties, .the learned trial judge delivered her ruling .on 26/1/2016 in ·which she held that the ' tendering of the exhibits register would not be in conformity with section 246 (2) of the Criminal Procedure Act, Cap 20 R.E. 2002 (The CPA). The above two rulings did riot amuse the Director of Public Prosecutions (the DPP). So, on the 26th day of January, 2016 he filed a notice of -appeal to this Court against the ruling dated 20 th January, 2016, and on 3rd day of February, 2016 he filed another notice of appeal . 2 to impugn the ruling dated 26th January, 2016. The two· grievances constitute the subject matter of th~ present appeal. _ _. ' . •.•:· In a memorandum of appeal lodged on 5/7/2016 the DPP raised the following grounds:- 1. That, the trial court.erred in law and fact by ruling that PF 16876 Insp. Samwel Humphrey Maimu (PW9) is incompetent witness to tender an exhibit in question namely a ·motor vehicle make Range Rover with Registration No. T. 800 CK~ 2. That, the trial court erred in law and lact by ruling .that Exhibit register does not suffice the 'provision of section 246 (2) of the . Criminal. Procedure Act, {Cap 2{) -R. E 2002)✓ thus it does n9t qualify to be admitted as exhibit. · · At the hearing of the appeal the appellant was represented by Mr. Abdall'ah' Chavula, assisted by Ms. Stella Majaliwa·<both learned Senior State Attorneys. The respondents were represented by Mr. Hudson Ndusyeko, Mr. Majura Magafu, Mr. Emmanuel Safari and Mr. Qamara Aloyce, all learned counsel for the first respondent, the second a·nd fi-fth . ' .. respondents, for the third respondent, and also holding brief for Mr. John Lundu for the fourth, sixth and seventh respondents respectively. 3 On the first ground, Mr. Chavula submitted that, contrary to what the trial court held, PW9 was competent to tender the car as an exhibit_ I. i i ·because he had first ·hand knowledge on it and could authenticate what ~ i the exhibit purported to be.· The learned· counsel then referred the Court to various paragraphs-· from. the record where the witness is shown to have identified the car. He submitted. that, the learned trial judge l- , rejected.the exhibit for wrongreasons, and urged this Court to set aside 1 . . . . i i the reasons, and allow.this ground. Resisting this ground, Mr. Majura Magafu, submitting on behalf of all the other counsei' . ·for the respondents, .said that the collection, . preservation _and tendering of exhibits in court. is governed by Polic~ . General Order Nb. 229: and the relevant paragraphs were·2. (b)_and (3). According to those rules neither PWl, whcf was- .in custody of the scene. of crime, nor PW9 who only visited the scene· of crime, were cqmpetent to tender the car as an exhibit; because, according· to the record the exhibit was finally handed over to the Regional Crimes Officer (RCO) who eventually took custody of the exhibit. Besides, at the time of testifying, . ' both PW9 and the then . RCO .had been- transferred from their respective j ' ; stations. As there was no explanation on how and who brought the car to the court and how PW9 came into the picture, the chain of custody_' .. was broken. On the law on the chain of custody, the learned counsel 4 " I referred us to several decisions of this Court including .PAULO MAPUKA ii · AND 4 OTHERS vs R.i Criminal Appeal No. 110 ~f 2007 (unreported). So,· in his view, the first ground of appeal was devoid of substance and \ i ! should be dismissed. In the second ground of appeal, the, ,OPP is challenging the trial · court for not admitting the Exhibits Register·as an exhibit through PW9, •- on the ground of not complying with section 246 (2) of the CPA. In his submission, Mr. Chavula told the court that it was wrong for . the trial court to have considered section 246 (2) of the CPA in isolation. It should also have considered it ·along with sections 245· (1) and (6) and 246 (1) of the CPA. He wenton to argue that had the trial court done so, and considered that, the substance of PW9's statement was :read to the ·1 accused persons at the committal proceedings,·the learned -trial judge . . . would have found that section 246 (2) of the CPA was complied with. . . . . On his part, Mr. Magafu learned counsel, submitted that section 246 (2) of th~ CPA, does not refer to statemeli1ts alone> but also to documents. So it was not enough for the committal co'urt to have only read PW9's. statements, to . tlie .accu·sed persons, .• but. also any dlocUJments that would go along or as part of the witness's statement. As the contents of the exiiibits register were not read to the 5 respondents, at the committal court the tricrl court rightly excluded PW9 .. from tendering the exhibits register as part of his ,evidence, he argued; He went on to argue that if the prosecution intended to produce the ·register as an additional evidence, they could still do so, after giving notice under section-289· (1) .of the CPA. Otherwise, the exhibits register had no room as a prosecution exhibit at that stage: He therefore prayed . for the dismissal of this ground t90 . . In his rejoinder; Mr.· Chavula submitted that in the spirit of section 246 (2) of the CPA, both the .statement and th~ _substance of the said •:(-· ., witoess_were read·to,the.:respondents:,.:So the law was complied with. He therefore prayed that this-ground of appeal be allowed, and the decision of the trial court be :set·aside.. . ' This appeal is· really on the question of admissibility of evidence. The basic prerequisites of admissibility of evidence in a court of law are ·. . relevance, materiality, and competence.· The general rule is that, unless it is barred by any rule or statute any evidence which is. relevant, material and competent is· admissible. ·on the contrary, any evidence which is irrelevant is inadmissible. (S.ee _:CROSS & TAPPER on EVIDENCE by Colin Tapper. 9th ed. P. 55). 6 Briefly, evidence is relevant if it tends_ to make any fact. that it is· _offered to prove, or disproye, either more or less probable. Evidence is material if it is offered to· prove a fact that is at issue in the case, and lastly, evidence is -competent if it -meets certain requirements• of. reliability. Reliabilitx may be establ.ished _by first adducing foundation evidence. So when evidencff; is objected to for want of foundation,. it means its competence, is called into question. _Under section 140 of the Tanzania Evidence Act, Cap 6 R.E. 2002 (the Evidence. Act). . it is the trial _ court which has the discretion to decide .on _the admissibility of any evidence, guided by the various provisions of the Evidence Act and other relevant statutes, such as the Criminal Procedure Act, Cap 20 R. E. 2002 (the CPA) in criminal trials. It is also relevant to point out_ that, there are four types of evidence, that is to say, real, -demonstrative,· documentary and testimonial. The general rules of admissibility of relevance, materiality, and competence, apply to all those types of evidence. In the present appeal two types of evidence come to the fore( . namely, real and documentary. Real evidence is a thing. whose -characteristics are rel.evant and material. It is a thing that is directly involved in some event in the case. 7 To be admissible, such evidence must·· be · relevant, material and competent. Its competence ·is established by· showing ·that it really is what it is claimed to be. This process ·is caMed authentication. · Real evidence may . be authenticated . in . three . ways; by id~ntification of a uniq~e object, by identification of an object that h_as been made unique, or by establishing a ·chain of custody. Chain of . . . . . custody requires that the whereabouts of the evidence, at all times since .. . ·, ~ . the evidence was seized be established by competent testimony. In .... such case evidence· must· establish that the object has not changed or been altered· between: the·-:::events: and.,:the-.tr.ial. If there is.__ anytime between the day of. the incident. and -the day of . trial· during .. which the . location of the item ·canno'LbEL accounted for, ...the chain i~ broken. (See PAULO MADU.KA &:, .OTHERS vs· R. (supra); But admissibility of evidence -is not only det~rn1in~d . _by the • relevance, materiality and competence· of _the particular evidence. It is also a function of the -competency of the witness who seeks to tender it in ·evidence.· As. we understand it, the competency of · witnesses may be classified into two; general,· and specific. Section .127 (1) of the . Evidence Act governs general competency of witnesses, which is that:- 8 Every person shall be competent to testify unless 11 the court considers that he is _ if!capable of understanding the questions put to him, or of _ giving rational an,swers _to those questions by reason of tender age, extreme old age, disease (whether of bodr, or mind) or- any other similar cause." The rest of Chapter V, of the Evidence Act. prqvides for exceptions to the general rule. But in any trial, it is not enough to have a competent witness. So, ! ' . - . . I the second class of witness competency 'is that the witness must be able ! to give relevant, matedal and competent evidence. · 1n other words he or ! she must be a materlal witness. In· our v·iew~ a material .witness is :a person who has information or knowledge of the $Ubje,~t ma.tter which i-s -significant enough to affect the outcome. of _a trial. (See _the Free , dictionary or legal dictionary). In the first ground of appeal, the real evidence in question, is a car and the issue is whether PVV 9 was competent -to - - produce it as an· exhibit?· When it came to tendering is as an e~hibit, PW.9 attempted to use one of the methods of authentication of the object by trying_ to show 9 that the car was the one in question.· In his submission in this Court, Mr . . Chavula also tried to impress ·us that PW9 managed· to identify the car as the one that it purported . . to -.be. ·., .. . However, . the. problem •. ' . with this type of authentication is that the court must be satisfied with the authentication. This was exactly what, bappen_ed. in this ca~~- . When PW9 went out to . . . . · identify the car, the court ri.oted that:- "However, the . witness could not. mqnage to open the bonnet of the car to identify the chassis no. that he alleged to have taken,- _at the scene of crilne, N Indeed, this was one of the' rea;;ons which the 'learned trial judge adduced in disqualifying PW9 from. bei,r1g a~ competent witness to tender .. ,. •' the car as an exhibit. Said the trial court in:its ruling:- · · ''Furthermore, while identifying the .car. when the . -.: . . ,, ' court .moved .outside. where the exhibit was parked; PW9. failed to open -the bonnet of the car ·to. show .us where the unique chassis no of the exhibit is, while he testified to have inspected the exhibit and record the chassis no at the scene of 10 crime but he could not be able ppen up· the booth · to show where the alleged chassis no is. ✓/ The alternative method was by establishing a chain of custody. Mr. Magafu had submitted, we believe, quite correctly, that :when the, police investigate a criminal case, the relevant regulations controlling . chain of custody is the PGO No 229. As there was no dispute that the real evidence (the car) in this case was handed over to the RCO, and as there was no dispute that PW9 had since been transferred from Kilimanjaro Region, and since it could not. be explained how the car reached the court, it is difficult not to hold that the chain of custody of the car, had not been established. In her ruling the. learned trial judge . observed that what broke the otherwise established -chain of custody of the car, was the witness's transfer to Himo which raised the possibility of there being another person who was in custody of the exhibit. In the event, we find that the prosecution attempts to have PW9 authenticate the car before admitting it in evidence as an exhibit did not ' . impress the learned trial judge. Having r~viewed the circumstances and. -the law, we are satisfied that PW9 did . not establish . fully his familiarity with the car, sufficiently as a foundation for ~is a.bility to authenticate 11 . that particular exhibit . We are thus. unable to fault the trial judge on her having so found, We therefor~ dismiss the first grou·n.d of appeal. The issue in the second ground of appeal is· the admissibility of documentary evidence. Like any other type of evidence, documentary evidence would ·also be adni•issible if· it were relevant, - material and competent, unless its -admission is barred by some other statute or rules of evidence. . . The exhibits register sought to be tendered by PW9 is certainly relevant and materia"I; but.the~question that ·arose is· whether there was sufficient statutory backihg··or foundation for it to be produced. It was the competency of tl:1e evidence which was cal!~d in question. In her short ruling, ·-the learned trial judge excluded the exhibits register, because· the said exhibit was not listed as an exhibit during committarproc:eedings in_terms of section 246 .(2) of the ~PA.. ·.; It appears to us that there is no dispute that the admissibility of . . the exhibits register was· subject to· compliance with the provisions of section 246 (2) of the CPA What is in dispute is whether the demands of the provision have been complied with. Mr. Chavula has argued that - the provision has been- complied if read to·gether with sections 245 (1) and section 246 (1) of the CPA. 12 We have looked at the provisions referred to us by Mr. _Chavula. Section 245 ( 1) gives powers to a subordinate _court to summon an ' • • • • • ' < / accused person for the purposes of dealing with him after his arrest, for an offence triable by the High Court. Section 246 (1) of the CPA empowers the subordinate court to summon an accused for the purposes of committing him after information has been filed. But section 246 (2) provides:- Upon appearanqe_ of the accused person before 11 it, the subon;Jinate court shall read and explain or cause to be. read to the accused person - the informc1lion .. , brought _against, .him as well as the statements or _ document •contai(Jing the substance of the evidence of the evidence of witnesses whom the Director of Public" Prosecutions intends to all at the ·· trial. " (Emphasis supplied). " w, Our understanding of this provision· is· that~ it is not enough· for a witness to merely allude to a document in his witness statement,· but that the contents of that document must also be mad>e known to the accused person(s). If this is not complied with the· witness cannot later 13 •· produce that document. as an exhibit in court. The issue is not on the I i authenticity. of the document ·but on · non-compliance with the law. We · t therefore agree that unless it is tendered as additional evidence in terms of section 289 (1) of the CPA, it was not receivable at that stage. .. Given the above _ '=xposition, we conclude that this appeal has been lodged without sufficient_ reasons .. We accordingly dismiss it and order that the case be remitted to the trial court for it to proceed with the trial from where it has left. Order accordingly.-. DATED at AROSHA this 4th day of August, 2016. ·•.... .' . E. M. I<. RUTAKANGWA . JUStICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL E DEPU · TP~R COUR: , \ 14