20080728 TZHC Arusha

IN THE HIGH COURT OF TANZANIA , , .... ' AT ARUSHA CRIMINAL APPEAL NO. 10 OF 2007 FREDRICK MKWEMBE .. . . . . . .. APPELLANT - Versus - THE REPUBLIC ... RESPONDENT (Appeal from the decision of the District Court of Ngorongoro) (G. M. PIUS, DM) Dated the 7 th day of November 2006 In Criminal Case No. 24 of 2005 JUDGMENT OF THE COURT 28th May & 21 st July, 2008 BEFORE: B. M. MMILLA, ,T.; In this appeal, Fredrick Mkwembe @ Israrel a.lea Samora s/o Teven @ Sabena is contesting conviction and sentences in N gorongoro District Court Criminal Case No. 24 of 2005 in which he was charged with five counts. He was convicted on the first four, but nothing was said regarding the last count. While he was sentenced to serve a term of 5 years imprisonment in respect of the first count and 3 years in respect of the second count, the appellant was sentenced to a term of 15 years in each of the third and fourth count. The appellant is appearing in person while the Republic is being represented by Mr. Kombe, learned state 1 attorney who expressed support to conviction and sentences entered by the trial court. The background facts of this case are briefly that, on the night of 28.5.2005 thieves broke and entered in the house of PWl Mathew Taki Ole Timan. It is said that PWl was not at home on that particular night and that the house was left under the care of their house girl who testified as PW2 one Frida d/o Mbeyani. A watchman whose name was not disclosed was supposed to be on guard, but the court was informed that he disappeared after the incident and has since been at large. Although PW2 and her colleague had sensed during the burglary that someone was knocking the door at midnight but ignored, they discovered of the burglary the next morning where upon the incident was reported to police. On the morning of 29.5.2005, the OC-CID one Switbert Njewike (PW3) visited the scene of crime and found that the door handle to that house was broken. Things were scattered everywhere in the house, something which indicated that theft was perpetrated. He interrogated PW2 and asked her if she was capable of identifying the stolen properties. He was informed that she was not conversant. He called PWl who told him that there were many things in the house including one pistol make Jennings, a computer, a moving camera and cash shs. 1,540,000/=, among others. PW3 noticed that those things were missing. He went back to Police Station and ordered investigation to commence. 2 The first thing the police did was to install road blocks with a view of conducting search in respect of all motor vehicles which were going outside N gorongoro District. At around 1.00 p.m., the OCS called him and informed him that they succeeded to recover some of the properties from a certain man who was found traveling to Arusha in a certain bus which fitted the description which was given by PWl. He went there and saw that person who happened to be the appellant. He asked his men to record his statement. He later on contacted PWl who late in the day went to police station and identified the recovered properties as his. It was then that the appellant was charged in court. The memorandum of appeal filed by the appellant has raised four grounds. However, he successfully requested to orally add three more grounds, thus making it seven in all. In this courts view, the first three grounds alleged in common that the prosecution side did not prove the case against him beyond all reasonable doubt, while the fourth ground challenges that the trial magistrate erred in law and in fact when it accepted and relied upon a cautioned statement which was denied by him and had contested its admissibility. The three grounds he added are seemingly intended to add weight to· the first ground regarding proof of the case against him. While he submitted in the first place that the prosecution erred in not calling the wife of PWl to corroborate the evidence of PW2; it is similarly his contention that the prosecution erred in not calling as witnesses the other passengers who sat with him on the seat under which there were recovered the bags which were found to contain the allegedly stolen property. Lastly, he has 3 contended that the court erred in accepting the evidence of PWS as a bus conductor because he produced no evidence to prove that he indeed was. As I have already pointed out, the appellant is saying in the first place that the prosecution side did not prove the case against him beyond reasonable doubt. On his part, Mr. Kombe has submitted that the prosecution witnesses' evidence amply established that the appellant committed the charged offences. It is trite law that except where a particular law directs otherwise, the burden of proving a charge against an accused is on the prosecution. The prosecution has to always prove beyond reasonable doubt that the person charged is indeed the one who committed the alleged crime. The accused person has no duty of proving his innocence. See the case of Jonas Nkize v. Republic 1992 TLR 213 (HC) in which it was held in that case that:- " the general rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable, and is a peril not worth taking; . " That court was influenced by the expression in the famous English case of Woolmington v DPP [1935] 25 whereby Lord Sankey L.C. said that:- "Throughout the web of the English criminal law, one golden thread, is always to be seen, that it is the duty 4 of the prosecution to prove the prisoner's guilt ... No matter what the charge, or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of English, and no attempt to whittle it down can be entertained." The position expressed in Woolmington's case was emphasized in the latter case of Mancini v DPP [1941] 3 All E.R. [1941] 3 All ER 272 in which Viscount Simon LC, added: ".... I would formulate the following propositions: W oolmington's case is concerned with explaining, and reinforcing the rule, that the prosecution must prove the charge it makes, beyond reasonable doubt, and consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it. The rule is general application, in all charges, under the criminal law. The only exceptions arise, as explained in Woolmington's case, in the defence of insanity, and in offences where onus of proof is specially dealt with by statute." Courts in our jurisdiction however, are supposed to heed to the valuable caution which was expressed in Chandrankat Joshbhai Patel V.R, Criminal Appeal No. 13 of 1998 (CAT) Dar-es-Salaam Registry (unreported) that 5 " ... a remote possibility in favour of the accused cannot be allowed to benefit him. Fanciful possibilities are limitless and it would be disastrous for administration of criminal justice if they were permitted to displace solid evidence or dislodge irresistible inferences." In yet another case of Magendo Paul and another v. Republic (1993) T.L.R. 219 (CAT), the court said that:- "If the evidence is so strong against an accused person as to leave only a remote possibility in his favour which can be easily dismissed, the case is proved beyond reasonable doubt." In our present case, the fact that burglary was committed in the house of PWl and things stolen from therein on the night of 28.5.2005 is not being contested. It is similarly not being challenged that those properties were recovered in a bus with a trade name of Chili Trans in which the appellant was also a passenger. PWl identified the said property. The trial court was satisfied, and the appellant did not dispute, that the two bags in which those properties were kept were recovered under the seat at which the appellant was seated, also that the hat and a piece of cloth in which the rounds of ammunition were recovered were also found on that seat. This was according to the evidence of PW6 No.F. 6832 PC 6 Fanuel who was among the policemen who gave the orders for passengers to alight after which they searched that motor vehicle. He testified that the allegedly stolen properties were found kept in two black bags which were recovered under a seat which it was said was occupied by the appellant. The evidence of PW6 on the point was amply corroborated by that of PWS Mashaka s/o K.ofia who was the bus conductor of Chili Trans. He testified that the appellant boarded the bus at W asso and had two bags with him. He stated that he had a hat on his head and camouflaged his face with a piece of cloth. He similarly stated that while the hat and the piece of cloth in which the ammunitions were wrapped were recovered on the seat, the two black bags were recovered under that same seat at which the appellant was the sole occupant while. He was certain that those bags were kept under that seat by the appellant. The appellant disputes in the first place that there was no evidence to prove that PWS was a bus conductor of Chili Trans. On this, I agree with learned counsel Kombe that his allegation does not carry any weight on account that he did not cross-examine him on the point. As was expressed in the case of Cyprian A. Kihogoyo v. Republic, Criminal Appeal No. 88 of 1992 (CAT) Dar-es-Salaam Registry (unreported), facts not cross-examined upon are taken as having been admitted. Had the appellant thought that PWS was not the conductor of that bus as he now tries to assert, he was expected to have cross-examined him. The record shows that he did not. 7 The other point he has raised in this regard is that the seat under which the two black bags were recovered was occupied by four persons. Although the trial court did not make a clear finding on whether or not that seat was occupied by four persons, the evidence is clear that it was the appellant alone who occupied that seat which was otherwise meant to be occupied by four persons. This is from the evidence of PWS who stated that there were many other seats in that bus which were not occupied, something which entail that the said bus was not full to its capacity. In the circumstances, the finding by the trial court that those two bags and the piece of cloth in which the ammunitions were found wrapped were in appellant's possession cannot be faulted. Possession of those properties by the appellant is also linked by the evidence of PW2 Frida d/o Mbuyani who testified that the accused had gone to the house of PWl on 23.5.2008 and inquired for the former's wife whom he alleged had ordered firewood. He told PW2 that the fire-wood was ready and asked her to inform her female employer that they were ready for collection. Of course, PW2 said that her employer came there but told her that she had no any deal with the appellant who left but looked quite annoyed. PW2 told the trial court that she was surprised to find that the same person who called at her employers' house on 23.5.2008 was the very one who was found in possession of their stolen properties. Once again, I agree with the learned state attorney Mr. Kombe that the allegation that the evidence of PW2 needed to be corroborated by that of 8 the wife of PWl is insubstantial on account that her evidence on the point was sufficient. As was stated in the case of Ally s/o Shenyau v. Republic, Criminal Appeal No. 27 of 1993, (CAT) Arusha Registry (Unreported), no particular number of witnesses in any case is required for the proof of any fact. In yet another case of Yohanes s/o Msingwa v. Republic (1990) T.L.R. 148, the court said at page 150 that:- "There was admittedly one eye witness in the case (PWl). Her evidence is not however detracted from because of that fact alone. As provided under S. 143 of the Tanzania Evidence Act 1967, no particular number of witnesses is required for the proof of any fact, what was important here were PWl 's opportunity to see what she claimed to have seen and her credibility." In our present case, PW2 told the trial court that the appellant went there during broad daylight and saw him quite clearly. In this court's view, the question of misidentify did not arise. Even, the trial court rated PW2 as a credible witness and I have no cause to doubt that. In the circumstances, I hold that the trial court property accepted as truthful the evidence of PW2. It is a fact that none of the witnesses said they saw the appellant during the particular night breaking into that house in which the alleged propertied were stolen. Two factors connect him to the charged theft; first that he gave a cautioned statement in which he allegedly confessed that he was indeed the one who committed the charged burglary, and 9 secondly the fact that he was the person who was found in possession of the said property. As regards the cautioned statement, the appellant denied to have made any, though he admits to have signed many papers which could have included the said statement. He reiterated the denial in his defence in which in the main, he said the officer who recorded it did not inform him of the rights obtaining under the law. I have carefully gone through the judgment of the court to find our whether or not it addressed this point. I am satisfied that it did not. On the authority of the case of Juma Salum and another v. Republic (1972) H.C.D. 163, I have duty to make my own findings in this regard. It was held in that case that:- "Having regard to the nature of the case against both appellants, it is necessary to review the evidence .... As it was said in the case of Peters v. Sunday Post(l958) E.A. 424,Shantilal M.Ruwala v. R (1957) E.A. 570 and Pandya v. R. (1957)E.A. 336, as approved recently by the same court of appeal in the case of David Shisia Okeno v. R., Cr. App. No. 72 of 1971 (not yet reported), and I quote:- "It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it (the first appellate court) must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses." On the basis of the materials available, I now embark to find out whether or not the cautioned statement was voluntary. Admissibility of confessions to police officers is covered under section 27 of the Evidence Act. It is provided under subsections (1) and (2) of that Act that:- "(l) A confession voluntarily made to a police officer by a person accused of an offence may be proved as against that person. (2) The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution." See the case of the case of Ezekiel s/o Simhamkali v. Republic (1972) H.C.D. 240 in which it was stated that where the prosecution seeks to rely on a confession the burden is entirely on the prosecution to prove that it was voluntary. In our present matter, the cautioned statement was received in court as exhibit Pl. It shows that it was recorded by Ast.Inspector Hassan. Looking at exhibit Pl, it is clear that the appellant was informed of all the statutory rights obtaining under the law and recorded him to have 11 made a clear response indicating that he was willing to offer his statement. The relevant part states that:- "'ONYO: Mimi A/Insp. Hassan nakuonya wewe Frederick s/o Mkwembe Israel @ Samora s/o Tevin kuwa unatuhumiwa kwa kosa la kuvunj a nyumba usiku kinyume cha 294 (sic) cha sheria ya adhabu 1967 (sic). Hulazimishwi kusema lolote ila kwa hiari yako wewe mwenyewe, na lolote utakalo lisema litaandikwa na linaweza kutumika kama ushahidi mahakamani dhidi yako. Na unayo haki ya kumwita wakili, ndugu au jamaa yako awepo wakati unatoa maelezo yako" They posed to sign and the date was indicated. The statement continued:- "ITIKIO: Mimi Frederick s/o Mkwembe Israel @ Samora s/o Tevin n1meonywa na askari A/Insp. Hassan kuwa natuhumiwa kwa kosa la kuvunja nyumba usiku kinyume cha kifungu cha 294 cha sheria ya adhabu na kwamba silazimishwi kusema lolote ila kwa hiari yangu mwenyewe na kwamba lolote litakalosemwa litaandikwa na linaweza kutumika kama ushahidi mahakamani dhidi yangu, pia nimeelezwa kuwa nina haki ya kumwita wakili, ndugu au jamaa yangu awepo wakati wa kuandika maelezo." Again, they posed to sign and the date was indicated. The statement continued:- "SW ALI: J e umeelewa haki zako? ,TIEU: Ndiyo nimeelewa. 12 SWALI: N diyo niko tayari kutoa maelezo yangu." This confirms my assertion that the police officer who recorded the appellant's cautioned statement substantially explained to him the statutory rights obtaining under the law, and that at each stage both himself and the appellant posed to sign. There is nothing to convince this court that the cited rights were not explained to the appellant as is being alleged now. The next issue to be considered is whether or not the said statement constituted a confession. In this court's view, the answer is in the affirmative. The reason is clear that the statement he offered admits in terms the commission of the charged offence. He admitted that at the time of his arrest on 29.5.2005 around 12.30 hours, he was found in possession of two pistols one make Braming and the other one make Jennings, some ammunitions which were wrapped in a piece of cloth, two cameras, and one computer. On page two (2) of the hand written statement, the appellant said:- "Vitu hivyo niliiba ndani katika nyumba ya Mbunge wa Ngorongoro iliyoko Wasso. Katika chumba cha Mbunge vitu hivyo vilikuwa vimewekwa sehemu mbalimbali vingine kwenye kabati na vingine juu ya meza. Niliweza kuingia hadi chumba hicho baada ya kuvunja mlango wa nje kutumia chuma ikiwa wakati wa kama saa 2300 hrs usiku na kulikuwa na manyunyu ya mvua .... " 13 In that what the cautioned statement at stake offers is indeed the same as what the witnesses said in court, it represented nothing but the truth. Appellant's attempt to deny it now amounts to retraction. The rule on retracted confession has been expressed in a number of cases, including those of R v. Mela Melanyi (1971) HCD 398 and Tuwamoi v Uganda (1967) E.A. 84. In the former case of R v. Mela Melanyi, the accused was charged with murder. He made a confession to killing the deceased at the time of arrest, which he later on withdrew. The court said that:- "It is trite law, and authorities abound on the point, that an admission or confession which has been retracted cannot support a conviction unless it is corroborated by other evidence". The position was best summarized by the Court of Appeal for East Africa in the latter case of Tuwamoi v Uganda (supra) in which their Lordships said that:- "W e would summarize the position thus, a trial court should accept any confession which has been retraced ... with caution, and must before founding a conviction on such confession be fully satisfied that in the circumstances of the case that the confession is true ... usually a court will only act on the confession if 14 corroborated 1n some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true". It is a fact that as regard our present matter, the trial court did not base its conviction on the said cautioned statement ( exhibit Pl). However, after being satisfied that the statement was truthful, and after carefully warning itself on the danger of relying on such document, this court is of the firm view that is could have safely been relied upon by the trial court had it not glossed it. It constituted good evidence that the appellant was the person who executed the charged offences. As I have already pointed out, the other aspect which connects the appellant with the charged burglary was the fact that he was allegedly found in possession of the properties in issue. This is the reason why the trial court invoked the doctrine of recent possession of stolen property. The import of the doctrine of recent possession was bests expressed by this court (Hon. Msumi, J. - retired) in the case of Director of Public Prosecutions v. Joachim Komha (1984) T.L.R. 213 in which it was held that:- 15 ... " (i) Held: (i) The doctrine of recent possession provides that if a person is found in possession of recently stolen property and gives no explanation depending on the circumstances of the case, the court may legitimately infer that he is a thief, a breaker or a guilty receiver; (ii) an inference under the doctrine of recent possession may be drawn to uphold any offence however penal it may be including the offence of murder." As was stated in this same case of DPP vs. Joachim Komba, there is no general principle for determining the period of time which is recent enough to justify the application of the doctrine of recent possession. Normally, such a doctrine is invokable where the court is of the view that it is relatively a short period from the time when the theft may have been alleged to have happened to the period of recovery of the same. In our present case, the properties were stolen from the house of PWl on the night of 28.5.2008 and were recovered on 29.5.2005. In this courts' view, that was recent enough such that the trial court rightly invoked that doctrine, also that it rightly connected the appellant with the charge burglary. Before I may wind up, I would like to say something about two things; first that counts 3 and 4 were bad by duplex and secondly the fact that the trial court did not make any finding in respect of the fifth count. I will starts with the aspect of duplicity. 16 '. The pistol and rounds of ammunitions were the subjects of counts 3 and 4. It is on evidence that the alleged pistol and those rounds of ammunitions were amongst the properties which were stolen from the house of PWl. In that the first count charged him of burglary, for which the various items stolen in the house of PWl were listed including the pistol and rounds of ammunitions, it was improper for the prosecution to have charged the appellant with counts 3 and 4. Those charges were therefore a duplex. However, the issue that follows is whether or not the irregularity occasioned failure of justice. In this court's op1n10n, the duplex in the circumstances of this case cannot be said occasioned failure of justice because the irregularity did not go to the root of justice. This is a curable irregularity under section 388 of the Criminal Procedure Act Cap.20 of the Revised Edition, 2002 and can be rectified by expunging counts 3 and 4 as I accordingly do. Counts 3 and 4 are expunged, therefore that the conviction and sentences in that regard are quashed and set aside respectively. There is also this problem that the trial court did not make any finding in respect of the fifth court as it ought to have done. This again is an irregularity. In that this is a first appeal, this court is entitled to make its own finding on the point. The 5 th count concerns the allegation that the appellant was found in possession of house breaking instruments c/s 298( d) of the Penal Code. 17 After going through the evidence of all the prosecution witness, this court has found out that except only one of them i.e. PW6, the rest of them did not say anything in that regard. It is to say therefore that the prosecution did not prove that court against the appellant. The trial court ought to have found, as accordingly do, that he was not guilty of that count and acquit him. In conclusion, the appeal succeeds only in so far as counts 3,4 and 5 are concerned for reasons I have amply expressed. It is dismissed as regards counts 1 and 2 for which the sentences of five (5) and three (3) years respectively which were ordered to run concurrently are upheld. Order accordingly. (Sgd) Mmilla, B.M. Judge 07.07.2008 21 st July, 2008 Coram: B. M. K. Mmilla, J. For the Appellant: Present. For the Respondent: Mr. Kombe B/c: S.M 18 .,., Court: Judgment delivered this 2l8t day of July, 2008 in the presence of Mr. Kombe learned State Attorney for the Republic and the accused person 1n person. AT ARUSHA. (Sgd) Mmilla, B.M. Judge 21.07.2008 I certify that this is a true copy of the original. BMM/jn. 19 'n I I\ , ----- ----.... t' I' .•• • .......... ::::- ""-, , / I ···£~-.u :,· ,";~~ ii , IJ L r