20161116 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA /~r r.V -·!1 ATMWANZA ./~·.. ' . CONSOLIDATED CRIMINAL APPEALS NO. 177 Of 2015 AND CRIMNAL APPEAL NO. 22 OF 2015 · (Originating from Economic Case No. 89 of 2015 of Bunda District Court at Bunda) . . ST· DOTTO S/O MING! @ NG'WANG'WA............... .1 APPELLANT MBOJE S/0 M.ADUHUJ @ MALIMI. ................... 2No APPELLANT VERSUS THE REPUBLIC ...............................................RESPONDENT JUDGMENT Before: Maige, J. At the District Co~rt of Bunda, the appellant, DOTTO ·S/O MINGl. @ NG'WANG'WAand MOJE S/O MADUHu· MALlMiwere charged with four counts of economic offenses. First, unlawful . entry into a National Park contrary to section 21(1) and (2) of the National Park Act, ~:,~-----4---~ J__..i..t-Htrl-'lruful possession of· weapons in a Nati · ion 24( 1) (b) and (2) of the NPA. Three, unlawful hunting in a National Park . contrary to section 23(1) of the NPA. Four, unlawful possession of Government trophy contrary to section 86(1) of the Wildlife Conservation Act 2009 (Act No. 5 of 2009) read together with · · paragraph 14( d) of the first schedule to· th~ Economic and . . . Organized Crime Control Act [.Cap. 20n RE 2002]. They were . convicted with all four' counts and thesentenced to one year imprisonment each for each of the first two counts,. three years imprisonment each for the third count and 20 years imprisonment each for the fourth count. Being- aggrieved by the conviction and sentence of the trial court, the appellants have appealed against both conviction and . . sentence. They have, each of them, presented four grounds of . appeal, which appear to be identical. The said grounds of appeal_ in my view can be reduced into the following four groui:1ds. first, the prosecution charge was not proved beyond reasonable doubt. Two, exhibits P-1 and P-2 had no evidential value as to link the appellant with the commission .of the offenses. Three, the trial was wrong in shifting the burden of proof to the appellant. The prosecution case at the· trial court was that; on August 27, 2013 the appellants were found. at Serengeti National Park without any written authorization. They were also armed with spear, panga, two knives and four animal trapping wires. It was alleged, that · they were found in possession of government trophies namely, a carcass of Zebr.~--.....c 2 carcass of Topi. PW-1 JOSEPH THOMAS and PW-2 SHADRACK. / , · tiONGOA · were park rangers who were on patroL · They saw \ . footprints which led to the discovery and subsequenty, the arrest .. . . o_f th_e appellants in a bush near a River within the Serengeti . National Park. The weapons above mentioned were tendered by · PW-2 and admitted as P-1. ERWIN. MAYWA was a wildlife warden of KOU-Bunda. He testified as PW-3. He told the court that he was the one who examined _the government trophies in question and prepared a certificate of valuation of trophies and inventory form thereafter. He produced both the certificate and inventory into evidence which were admitted collectively as P-2. It was his evidence that he could not produce the said government trophies into evidence . because subsequent to the issuance of the documents in exhibit P-2, they were destroyed pursuant to a court order. - At the hearing of the appeal, the appellants appeared in persons and were unrepresented. The respondent. had the service of Felegete, learned state attorney. When the appellants were invited to address the court on his appeal, he opted to let the . . learned state attorney to adOJ:E~mg 3 fa·~/f•_ / Miss. Felegete in her brie.f submissions: did not support the conviction in respect to the last three counts. However, she supported conviction i'h respect of the first count, namely entry in the National park illegally_. Submitting in relation to the fourth count, Miss Felegete took the view that there was no evidence to support the conviction. She -submitted that the government trophies alleged to have been found with the appellant should have been exhibited before being destroyed. The disposal of th~ exhibit, it was submitted, was done prematurely and to the detriment of the appellants. The evaluation report and inventory tendered in court, in the opinion of the learned state attorney, could not establish existence of the alleged government trophies since the appellants were not afforded an opportunity to see the exhibits. She referred the court to the provision of section 353 of the CPA read together with section 101 of Wildlife conservation Act. On the issue of beil')g found in possession of weapon, it was the submission of Miss. Felegete that the admission of the said weapons was made without the appellants being asked whether they were objecting or not to the admissibility of the same:- Fo"r that reason therefore the e weapons was illegal. In 4 I . . addition,. the counsel. submitted,· there was no 'certificate of . . seizure ·that .would establish chain of custody of the same: As regards to the third count, illegal hunting in the National Park, the opin"ion of the learned state attorn~y was that there was no evidence to that effect. The evidence of PW-1 and PW- 2wassuch that the appellant were found themselves hiding in the bush. Hiding in a bush is not the same as hunting. _. On the first count, the learned state attorney submitted that the evidence of PW-1 and PW-2 indicates th~t the appellants were 9rrested while in the national park. In their defense, they did not object. He therefore invited the court to confirm the conviction in respect to the fourth count. On their part, the appellants supported the submissions of the learned state attorney and prayed .that they be set free. After careful examination of the judgment and proceedings · of the trial court and evaluation of the submissions and memorandum of appeal, I am inclined to agree with the learned state attorney that the last three cou,nts were not proved beyond reasonable doubt. If I could start with the offense of being in possess.ion of government trophies,. the trial court relied on the oral testimony of IPW-1 e documentary evidence 5 I in P-2.). The evidence from the -prosecution was that they could not tender t~e government trophies because they were destroyed pursuant to a ·court order. The said court order was not tendered into evidence_ and no reason for the omission was assigned. In my opinion, the destruction order was very important in establishing the chain of custody. The Court of Appeal in PAULO MADUKA AND ANOTHER v. R.; Criminal Appeal No. 110 of 2007 (unreported) underscored the importance of establishing a proper · chain of custody of exhibits in the following words:- By chain -of ''a chain of custody// we have in mind the chronological docu.rnentation and/or paper trail, showing the seizure/ custod½ control, transfer analysis and disposition of evidence be it physical or electronic. The idea behind recording the chain of custody, is to establish that the alleged evidence is in fact related to the alleged crime -rather than, for instance/ having been planted fraudulently to make. someone appear guilty. ... the chain of custody requires that from the moment the evidence is collected, its every. transfer from one person to another must be documented and that it be provable that nobody else could have accessed it. // In this case, while · the government trophies were not tendered into evidence fpr the reasofl that they were destroyed · . the absenc~ of the court order, it cannot. be established that the . (' I trophies referred in exhibits P-2 are the ones which· the prosecution alleges that they. were in the possession of the appeHants. · Besides, under section 353 of the CPA· read together with . section 101 of the Wildlife Conservation Act, the destruction of the . trophies, as correctly submitted by Miss. Felegete,. learned state attorney, ought to have been the order for destruction of the trophies made in the court proceedings. and the presence of the appellants. This is in line with the authority of the Court of Appe~I of Tanzania in EMANUEL SAGUDA@ SULUKUKA VS REPUBLIC, CRIMINAL APPEAL NO. 422 B OF 2013, where it was observed as follows;- It is evident from the provision of section 101 of the Wildlife Conservation Act the Government Trophies found in possession of the appellant_s were required to be tendered in Court as exhibits. This was not done. jnstead a certificate of valuation and at? inventory form were tendered and admitted in court. The appellants dld not have an opportunity to raise an objection. It is a well established practice in cases that where witnesses are required to testify on a document or object which would subsequently be tendered as Exhibit that the procedure is not simply to refer to it theoretically as was the case here, but to have it physically produced and referred to by a 9 thereof) I In the light of the above authorities therefore, the appellants { w9uld · have not been convicted with the offense of· being in ' possession of the Government trophies without the said trophies being tendered physically in court. On the offense- of illegal hunting, I entirely agree with the .learned state attorney that there was no evidence . given to establish that the appellant was found hunting in the National Park. Instead, the prosecution evidence suggest that he was hiding hims~lf in a bush. On the .issue of being found with weapons in the National Park, the trial court relied on the oral on oral testimony of PW-1 and PW-2 that they had found the appellants, on the material date, with possession of two knives, one panga, one spear and five trapping. The said weapons were admitted into evidence and marked collectively P-1. Before receiving the said weapons into evidence, the trial magistrate did not afford the appellant an opportunity to make a comment on the admissibility. of the same. !he omission, as rightly submitted by Miss. Felegete, is fatal to the judgment and proceedings because it entails denial - of the .appellants' right -protected under our Constitution. 8 I ' ' ' '. In addition, the weapons in exhibit P-1 were received / i without being accompa.nied ·with a certificate of seizure tendered .. as required in law. The production of a certificate of seizure would demonstrate the chain 9f custody of the weapons. It would have shown to whom did the same go after being seized from the appellants. In the light of the authority PAULO MADUKA AND . · .ANOTHER (supra), I find th~t the trial court was also wrong in p·lacing reliance on exhibit P-1 to establish that the appellant was found .in possession of weapons while there was no evidence of the chain of custody of the same. On the first count namely illegal entry in the National Park, I agree with Miss. Felegete, learned advocate that there is sufficient evidence to establish that the· appellant were arrested in the National Park and that when they were asked to produce permit he could not afford.. The evidence of PW-1 and ·PW-2 on this aspect is relevant. I note from the proceedings that the same was not challenged by . way of cross examination nor independent testimony. For those reasons therefore, the appeal partly succeed to the extent of the conviction and· sentence in respect of the last three counts and fails to the exte nviction and sentence in t respect of the. first count. The conviction and sentence of the . appellants in -respect of the last. three· counts is set aside and . . . . quashed. The conviction and sentence in respect of the first count is however confirmed. Besides;. since the appel'!ants were committed to prison since 17.06.2015, one year sentence in respect of the first offense has been fully satisfied. As a result, the appellants are·set free unless withheld for oth~r lawful reasons. It is so ordered. At Mwanza 16/11/2016 10 t ( _Date: 16/11/2016 Coram: Hon. Maige, J . Appellants: Present· Respondent: Karumuna S/A · B/C: M. Said Judgment delivered in the presence of appellants in person and Mr. Karumuna State Attorney for Respondent, this 16th day of November, 2016. J:.Ma~ge Judge 16/11/2016 11 f