20140414 TZHC Dar es Salaam

I IN THE HIGH COURT OF TANZANIA, AT DAR ES SALAAM, CRIMINAL APPEALS No. 94 OF 2011 ,..-l, __ t (Originating from Criminal Case No. 228 of 1998 in the District Court of Kinondoni District, at.Kinondoni). ·KAMALA KUS UP A .......................................... APPELLANT VERSUS. REPUBLIC ................................................. RESPONDENT JUDGMENT 21/11/2011 & 1410412014. Utamwa, J. In this appeal, the\ appellant Kamala Kusupa challenges the judgment of the District Court of Kinondoni District, at Kirtondoni (trial court) dated 0311012002. The respondent Republic apparently objected the appeal. But follow:ing its laxity. in this matter, the court orde·red. the appeal to proceed without the respondent (order dated 21/11/2011). Before the trial court, and according to its judgment, the appellant stood charged with three counts as. follows; In · the first count, he was charged with uttering counterfeit current notes ·els 360 of the. Penal Code, Cap. 16, R. E. 2002 while in the second count the charge was in respect of unlawful possession of forged notes els 348 of Cap. 16. As to the third count, he was arraigned for unlawful possession of forged ' US Dollar notes els 348 of Cap. 16. The allegations in the particulars of the offence were to ·the following effect; in respect of the first count, it was alleged that on the 25112/1998 at about 20-;' 00 hours at Ubungo Petrol Station area within Kinondoni District in Dar es salaam Region, the appellant did utter one counterfeit currency bank note of Tanzanian shillings {Tshs.) 10, 0001= denomination with No. AM 424468 ' resembling the currency ,p.ote issue by the Bank of Tanzania, to one Racho Alphonce, while knowing it to be a counterfeit note. Page 1 of 8 , As-to-the second count it was -alleged to-the-effectthat on-the same-day, tim-e··andf~ place, the appellant was found in unlawful possession of three forged notes of Tshs. 10, 000/= denomination with numbers. AM 424468 totalling to Tshs. 30, 000/= ' knowingly that the same were forged notes. In regard to the third count the allegations were that, on the same date, at 23. 30 hours in Magomeni Kimamba Street within the same District and Region the appellant was found in unlawful possession of 160, 000/= notes of forged United States Dollars (USD) with various numbers knowing the same to be forged USD. The numbers on the USDs and the mount involved in bracket were as follows; AB 26642657 (USDs 18, 900), AB 2664.2657 J (USDs 13, 200), AB 26642659_ J (USDs 7, 000), AB 63170055 B, AB 0438516 (USDs 4, 900), AB 26642658 (USDs 5, 500). Others were No. AF 74~71591 (USDs 21, 900), AB 63170052 (USDs 14, 700), AF 72977583- (USDs 32, 200), AB 318133731 (USDs 19, 700), AB 50210761 (USDs 16,200) and AB 263170052 (USDs 1, 100). It must be emphatically clear here that, as hinted previously these are the allegations according to the judgment of the trial court. In fact, I take these allegations to be a true reflection of the charge sheet laid against t9-e appellant before the trial court and I will decide this appeal relying upon them. The grounds for taking this course are that; when I posed to compose this judgement, I perused the records of this appeal which include the original record of the trial court, page by page and from cover to cover. However, I could not encounter any copy of the charge sheet, whether in original form or in copy. My presumption is therefore that, the same has b~en misplaced in movements of these extraordinary old records the pro.ceedings of which were commenced before the trial court about sixteen years ago (i.e in December, 1998 when the charge sheet was lodged). This presumed misplacement is also testified by the proceedings of this appeal which indicate that the learned State Attorney for the respondent (Mis. Mariam Haji) ·complained before this court on the 26 th day of September, 2011 that the copy of the I charge sheet was missing from the set of documents served to the respondent. I also , ' find this course safe and reliable for, neither party in this appeal complained that the judgement of the trial court does not reflect the true allegations of the charge sheet. I could not act otherwise because doing so would amount to a further delay of this 0 appeal, which is no.t the intention of courts of law. , Before the lower court, the appellant pleaded not guilty to all the three counts , 1' ' and a full trial ensued where the prosecution produced six witnesses and the appellant Page 2 of 8 ·stood as the single defetice witness. At the end of the day the trial court found him guilty of all the three c9unts and sentenced him to serve in prison for five years in respect of each count. The sentences were directed to run concurrently. The appellant '... thus appeals against both the conviction and sentence basing on a single ground of . ... _ appeal that the prosecution did not prove the case beyond reasonable doubts. He thus urged this· court to quash the judgement of the lower court and set aside the sentence. In his argument supporting the single ground of appeal the appellant who fought • solely without any legal representation submitted to the following effect; that, the · prosecution witness (PW.) No. l testified mentioning a note numbered AB 26642650 ·~but he tendered a different note with numbers B. 63170052 B which was also tendered in the second time by PW. 5. He also argued that, according to the United States embassy report that was tendered as ·prosecution evidence, there· is an additional note . above the alleged fake notes f~mnd with him. This shows that the police had added the additional note from another source, he submitted. He also contended that the genuine notes found with him were not presented as evidence in court. The appellant added that, PW. 1 did not record the numbers of the notes found in his home. He further contended that, he was not found with ~he note with numbers B. 63170052 Bon which •, the trial court erroneously based the conviction. He also argued that, PW. 2 testified that he was only informed by policemen that the USDs found with-him (appellant)' were forged, but he did ~ot prove that fact himself. He again contended that the dates . appearing on the charge sheet showed the date he was charged in court for the first time as the date of event, that was thus a false allegation against him, he submitted. Though the respondent Republic opted to be relaxed in this appeal as hinted earlier, that is not a warrant for granting the appeal. Justice requires me to test the merits of the appeal as l hereby do. The main issue before ' . ' me is thus whether or not the prosecution failed _to prove the three counts against the appellant beyond reasonable doubts before the trial court. In testing this issue I will stay awake of the ·trite legal principle that in criminal justice, the burden of proof lies on the prosecution and its standard is beyond reasonable doubts unless the law (a statute) expressly directs otherwise. In my adjudication plan, I will test this main issue in respect of each count. As to the first count the sub-issue is whether or not the prosecution failed to proved the offence created under section 360 of Cap. 16 against the appellant. These provisions create a crime known as uttering counterfeit coin. I q_uote the brief provisions for a readyn;1ade reference; Page 3 of 8 "Arty person who utters any counterfeit coin, knowing it to be counterfeit, is· ,. guilty of an offence". ~ On the other hand s. 353 of Cap. 16 defines the terms "coin" and "counterfeit coin" thus, and I also quote the same for ease of reference; " ... 'coin' includes any coin coined in a mint for use in Tanzania, or lawfully current in Tanzania or in any part of the Commonwealth; and any coin of a foreign sovereign or state, and coin which was at any time legal tender in Tanzania or in any other country and which is convertible into coin of legal tender therein. 'counterfeit coin' means coin not genuine but resembling or apparently intended to resemble or pass for genuine coin; and includes genuine coin prepared or altered so as to pass for coin of a higher denomination". From the above quoted provisions of the law, it is lucid that the legislature .intended to create the offence of uttering counterfeit coin under s. 360 of Cap. 16 ·only where a person gives to another person fake "currency coins" as opposed to fake "currency notes" knowingly that the coins are bogus. This interpretation of the law is supported· in the case of Michael v. R. [1971] HCD. n. 286 following R. v. Nesto Kilabi (1969) H. C. D. No. 306 where it. was held that, a currency note is not a coin, and a person allegedly found with forged notes or who utters the same cannot be charged with uttering counterfeit coin which refers to metal objects being adapted to resemble coins. The court in the case of R. v. Nesto.. Kilabi (supra) further observed •, that it is quite clear that the term "coin" under s. 360 ofCap. 16 means exactly what is meant in ordinary language. In the matter at hand, it was alleged in the charge sheet and the prosecution evidence that the appellant was found not with any coin, but with alleged forged notes. He could not thus be charged with the offence under s. 360 of Cap. 16 for, notes are not coins. The charge was thus misconceived. It cannot thus be held that the prosecution in fact proved this offence in any standard, let alone beyond reasonable doubts. The sub-issue in respect of the first count is thus determined positively. The tests in respect of the second and third counts can be performed cumulatively since the two counts were in respect of unlawful possession of forged notes contrary to the same provisions of s. 348 of Cap. 16. Their distinction is only that, under the second count notes of Tshs. 10, 000/= denomination were I involved while under the third count USDs notes were at issue. The provisions! of law create the offence of Page 4 of 8 purchasing forged notes and they are-couched in this_ style, I quote them verbatim for a. swift reference; · "Any person who, without lawful authority or excuse, the proof of which lies on him, purchases or receives from any person, or has in his possession, a forged bank note or currency note, whether filled up or in blank, knowing it to be forged, is guilty of an offence, and is liable to imprisonment for seven years". The sub-issue in respect of the second and third counts is thus whether or not the . prosecution failed to prove the offence of purchasing forged notes against the appellant under the first and second counts. In my view, the important ingredients ~f ,tfiis offence according to the wording of s. 348 of Cap. 16 and which the prosecution must prove before a conviction is entered are these; 1. That the accused purchased or received from any person or had in his ' possession forgfd bank _notes or currency notes, whether filled up <?X in• blank. 11. That the accused person purchased or received or possessed the bank or currency notes while knowing that they were forged .. 111. That the accused person purchased or received or possessed the said forged bank or currency notes without any lawful authority or excuse (the proof of which lies on him). I am also settled in mind that, the three ingredients mentioned above must be established cumulatively: and not alternatively. However, the ingredient iii) becomes relevant only when ingredients i) and ii) have been proved by the prosecution beyond reasonable doubts. I am further of the view that, where the ingredient iii) is relevant, the statute shifts the burden of proof of the lawfuln.ess or excuse of the act (of purchasing or receiving or possessing forged bank or currency notes) to the accused · person. The law is also to the effect that though in criminal cases the burden of proof is on the prosecution to prove the case beyond reasonable doubts, where the onus shifts to the accused, the standard of proof is on the balance or probabilities, see the prudence of the Court of Appeal of Tanzania (CAT) in the case of Said Hemed v. Republic [19~7] TLR 117. I will now examine the evidence on record for the purpose of seeing if ifestablished the three ingredients cumulatively. The totality of the prosecution evidence is to the effect that, on the material date and place, the appellant handled a Tshs. note of 10, 000/= denomination to one Rachel • Alphonce (PW. . 4) for a change, but PW. 4 detected . the note to be fake and caused Page 5 of 8 J policemen to come and arrest the appellan~. When policemen searched the appellant, i they found him with other 3 fake notes of the same denomination. The appellant also directed policemen to his home (a rented room) where he showed them some USDs which policemen alleged were forged. Policemen involved in the search were PW. 1 (Insp. Edmund) and PW. 5 (Cpl. Japhet). The appellant wrote a cautioned statement before another police officer (PW. 6, Cpl. Augustus) which was also admitted in evidence. In the statement he admitted to have been found with the notes but pleaded that he did not know that they were forged. PW. 2 (Salum Ally) and PW. 3 (Hamisi Mohamed) were civilian witnesses who witnessed the appellant's room being searched by policemen and the notes being found there from. The ·notes were investigated and found to be forged. In his defence, the appellant essentially admitted to have been found with the notes which the prosecution later said were fake. He however maintained that they were genuine notes given to him through one James Fa~ah from Congo following a sale of maize. He produced various documents to vindicate the sale transaction. He also maintained that it was difficult for him or any other ordinary person to: detect the fake notes. In my settled view, the prosecution evidence only established the ingredient i) of this offence to the effect that the appellant was in possession of the forged notes though the appellant disputes that the notes found with him were fake. I did not see in . record, any prosecution evidence pointing that the appellant knew that the notes he had were in fact forged notes. On the contrary, PW. 4 (Racho) testified that, after she had detected the Tshs. 10, 0001= note given to her by the appellant was fake, the appellant still insisted that the same was genuine. In fact, the appellant maintained that he did not know that the notes found with him were fake even in his cautioned statement and in his defence. It is apparent that the trial court convicted the appellant not because there was direct evidence that he knew the notes he possessed were forged, but because he remained silent when the notes were found in his possession. According to the trial court, his •silence meant that he had admitted that the notes found in his possession were fake (see page IO of the typed judg~ent). But in the absence of specific evidence, this silence (if any) did not necessarily- mean that the appellant was admitting that he knew the notes in his possession were fake. It is more so considering the above mentioned express indication by the appellant before PW. 4, in the cautioned statement and in his defence that he did not know t4at the notes were fake. Moreover, there was evidence from PW. 1 that when he interrogated the appellant upon his arrest, he Page 6 of 8 " seemed shocked, trembling, shaking and sweating. PW. I also testified that when he asked the appellant if he had any other forged notes, he readily replied that he had notes which were genuine ones only. There is also evidence that the appellant directed the policemen to his room, showed them the not~s even before the search was conducted. His conduct was thus inconsistent with the demeanour of a person who possessed the forged not~s knowingly. I understand that it could be very difficult to prove that the appellant knew that the notes he possessed were forged. But that complexity could not warrant th~ trial court to rush and presume the guilt knowledge of the appellant. by his conduct of silence which is not even supported by the evidence as shown above. If the appellant indeed had possessed the forged notes knowingly, one would expect the prosecution to testify on his implicating conduct (if any) in respect to such possession for, it has been observed that what goes'.on in the mind of a person can reasonably be ascertained by reference to the conduct or physical appearance of th~t person, see Hatibu Gandhi · and others v. Republic [1996] TLR 12 (CAT). For example, it would be material to · show that the appellant was evasive in produdng the notes he had, or he was reluctant in directing the policemen to his room which was far from the petrol station where he was arrested and which no policeman knew before his arrest. The prosecution would have also produced evidence that the appellant had tried to run away from PW. 4 before the police came to the petrol station or that he had denied having the notes. · The prosecution however, did not give any evidence in respect of the appellant's : conduct pointing that he knew the notes he had were fake. In the contrary, the conduct of the appellant was that of a cooperative person according to the evidence as hinted · above. It follows therefore that, the ingredient ii) of the offence was not proved by the prosecution at all. For this reason, there is no need to test the establishment of the ingredient iii) of this offence since I have already found herein above that all the three ingredients must be proved cumulatively and not alternatively. I therefore, determine the sub-issue in respect of the second and third count positively too. Having observed and found as above, I see no reason to consider the appellant's argumentsin support of the single ground of appeal since the discussion and findings I have made earlier suffice to dispose of the entire appeal. I am thus bound to determine the main issue posed above positively as I hereby do, but for different reasons from those argued by the appellant during th(? hearing of the appeal. As a post script, I would add that, there might have been high suspicion that the appellant.committed the offences charged under the first and second· counts, but the' law is specific that suspicion, however great does not take place of evidence and Page 7 of 8 I -. ' ,l)~-. 1· . ks\~ r -~--~---- support conviction. It is for this reason that ju~tic~-directs- that; it isbetter t~" acqui~,~- several criminals than convicting ' a single innocent person. Consequently, I upholcftHe . single ground of appeal for being meritorious. I therefore allow this _appeal, quash the judgement of the trial court and set aside .the sentence imposed against the appellant. I further order that if the ·appellant is still in prison, then· he must be released forthwith .unless legally held for any other lawful caus~. It is accordingly ordered. JHK. UTAMWA JUDGE 14/04/2014. 14/4/2014. CORAM; Hon. Utamwa; .J. For Appellant; pre_sent in person. For Respondent; Mis Jehovaness Zakaria (State Attorney). BC; Mrs. Che1na H. Omary. Court; Judgment delivered in the- presence of the appellant and Mis Jehovaness Zakaria, State Attorney for the respondent in court this 14 th day of April, f014. · JHK.UTAMWA JUDGE 14/4/2014. Page 8 of 8