hakizimana sylivester vs republic 2005 tzhc 294 1 september 2005

IN THE HIGH COURT OF TANZANIA AT BUKOBA CRIMINAL APPEAL NO. 34/2003 (Original Cr. Case No. 482/2002 from the District Court ofNgara BEFORE: N.H, BIDEBER1-HON. MAGISTRATE) HAKIZIMANA SYLIVESTER = - APPELLANT VERSUS REPUBLIC^--— --■-•===— ------------- =— — ™ — RESPONDENT JUDGMENT LUANDA, J. Aggrieved by the finding and sentence of the trial district court, the appellant is appealing in this court. But this appeal, as rightly pointed out by Mr. Vitalis learned State Attorney for the Republic, is incompetent for lack of notice of intention to appeal. The provisions of S. 361(a) of the CPA, 1985 is explicity clear that notice of intention to appeal is a pre­ requisite for lodging a Criminal appeal in this court. Since that was not done, the appeal is incompetent. The same is struck out. But Mr. Vitalis did not end there, he said the trial court did not conduct voire dire before receiving the evidence of the victim of rape. He prayed the court to quash the proceedings and Order retrial. I have gone through the record. He is quite right. The victim of rape one Hatungimana d/o Lucine was 6 years of age. Under S. 127(5) of the Evidence Act, 1967 the victim is a child of tender years. A Child of tender years is competent to testify if the court is satisfied that he under stand the questions put to him. The criteria used whether a child is competent or not is by way of an investigation which in legal circles we call voire dire. The manner to ascertain that is provided for under S. 127(2) of the Evidence Act, 1967. In our case, the record shows thus: “PW1 - Hatungimana Lucine, 6 years, Refugee Lukola “A”, pagan unsworn. COURT: She is too shy to testify intelligently - however the little she can comprehend is received - The one who ...” From the quoted passage, no investigation was conducted. The conduct o f it is mandatory (See Dhahir Ally V R (1989) TLR 27 and Shozi Andrew VR (1987) TLR 68). Since the voire dire was not conducted, the evidence of Hatungimana d/o Lucine was wrongly admitted and acted upon. And since the evidence of Hatungimana is vital to the case, the conviction can not stand. Exercising revisional powers of this court as they provided for under S. 373 of the CPA, 1985, the conviction is quashed and sentence set aside. Is this a fit case to Order retrial? The appellant was sentenced to 30 years imprisonment - the minimum sentence as mandated by law. He has stayed in jail for 2 years and 5 months. He has yet to serve substantial portion of it. In sum, I order the appellant be recharged before another magistrate. For the smooth implementation of this Order, let the Prison authority hand over the appellant to the RCO/OC-CID of the area where the appellant is at the moment so that he be transported to Ngara District to answer his charge. It is so Ordered. Judgement read over in the pi Mr. Vitalis - State Attorney and absence of the appellant who did not wish AT BUKOBA 1/9/2005