20160330 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA

AT MBEYA MISC. CRIMINAL APPLICATION NO. 39 OF 2014 (From DC. Criminal Appeal No. 78 OF 2014) LENARJ ..... . .. . . . .. ......... . . . . ......... .........PPELLA?1'1'

VERSUS THE 1.EPUBLIC .......................... . ........ .. ........ . ...... R.ESPONDENT

JUDGMENT Date of last order: 08. 12.2015 Date of Judgment: 30. 03. 2016 Dr. M. C. Levira, J In the District Court of Mbozi in Criminal Case No. 46 of 2012 the appellant Leonard Nyang'uye was charged and convicted with all three counts namely Rape Contrary to Section 130 (1) (2) (e) 3 (a) and 131 (1) of the Penal Code Cap 16, Impregnating a school girl Contrary to Section 35 (3) of the Education Act Cap 353 and Rule No. 5 of the Education (Imposition of Penalties to a person who impregnate a school girl) as announced on the Government Notice No. 265 of 2003, and Causing a School Girl to fail to attend school Contrary to Section 35 (3), Cap 353 and Rule 2 of the Education (Imposition of penalties to a person who impregnate a school girl) as announced on the Government Notice No. 265 of 2003. Pagelofl8 (.S 0 The appellant was sentenced to 30 years imprisonment for the 1st count, 4 years in the second court and 3 years imprisonment for the 3rd court. The sentence was to run concurrently. At the trial court, the prosecution adduced evidence to the effect that on 01 / 03/2012, PW 1 suspected that PW2 was pregnant and when PW2 was asked, she admitted that she was pregnant and the appellant one Leonard Nyang'uye was behind the pregnancy. The matter was reported to the police and later PW2 was sent to Tunduma Dispensary where it was confirmed that PW2 was pregnant. It was also said by

PW2 that at that time she was of 14 years of age, she was born in 1998. PW2 used to arrange books in the office of the appellant. The appellant ones was appointed to act in the office of the Head Teacher. That is when the appellant started touching PW2. On the due course the appellant raped PW2. On 01/03/2012, PW2 realized that she was pregnant and the child was born on 03/08/2012. It is also apparent that PW2 and the appellant had sexual intercourse in September, 2011 at about 03:00 hours. The evidence concerning DNA, PW5 is the one who collected the sample of blood form PW2, the new born and the appellant. PW5 stored the blood sample in container and then it was taken to the Page 2 of 18 Government Chemist. PW4, the Government Chemist tOld the trial court that he received the blood sample on 07/02/20 13. After the ( experiment on DNA, PW4 discovered that there was a matching of DNA between the mother (PW2) and the child, and that of the father (Appellant) with the child. In response to the prosecution case, the appellant pleaded his innocence but he was convicted and sentenced. Having been dissatisfied with the conviction and sentence the appellant has preferred this appeal. With the assistance of Ms. Mgaya Advocate, the appellant has filed a memorandum of appeal of nine grounds. The grounds of appeal revolve around the burden of proof, non compliance with Section 127 (2) of

the Evidence Act, Cap 6, failure to conduct the proceedings in camera, un procedural conduct of the DNA test contradictions of evidence among the prosecution witnesses and failure to consider the defence evidence. At the time of hearing, the appellant was represented by Ms. Mgaya, learned Advocate and Ms. Protista appeared for the respondent, Republic. In ground one and two, the learned Advocate for the appellant submitted that the trial court erred by saying that the evidence of the child can be taken without conducting the voire dire test. She also observed that Section 127 (2) of the Evidence Act allows the Page 3 of 18 S . court to. consider the evidence of the child after having satisfied that the child knows the meaning of oath and the duty of speaking the 1. truth. And that can only be done by conducting voire dire test. Therefore since the trail court.failed to conduct voire dire test it was wrong for it to ground conviction relying on such evidence. In support, of his argument the learned Advocate cited the case of Móhamed Sainyenye Vs. Republic, Criminal Appeal No. 94/2009 Court of Appeal of. Tanzania and David Habunga Vs. Republic, Criminal Appeal No. 12 of 2015. The learned Advocate for the, appellant submitted in ground three that the trial court erred when it allowed the matter to be conducted in open court. As a result the court proceedings were made challenged

by normal people including the community radio called Ushindi; learned Advocate marked that Section 186 (3) of the CPA was violated. Ms. Mgaya cite the case of Tatizo Sanga @ Isaya Vs. Republic DC Criminal Appeal No. 9 of 2013 in which it was decided that all proceedings which are not conducted in camera are invalid. It was also submitted that the DNA test was conducted by unqualified officer. The procedure was not in accordance with the law. Among other shortcomings, Ms. Mgaya for the appellant stated that, it was unclear who sent the blood sample to the Government Page 4 of 18 Chemist and the person conducted sampling was not considered the sampling officer; Ground No. 6 and 7 were not much argued by the learned Advocate except saying that there were contradictions over the evidence of PW1 and that, the defence evidence was not considered by the court when reaching into its decision. In response, the learned State Attorney conceded that the trial court failed to comply with Section 127 (2) of the Evidence Act Cap 16 as the evidence of PW2 (Victim) was accepted without conducting voire dire test. The learned State Attorney responded to complaint in ground 3 and 4 that the proceeding appears that at the commencement it was conducted in camera; and the trial Magistrate made an order that Ushindi Radio should stop discussing matters, that were still pending in the court. In

regard to DNA test, the learned State Attorney opined that there was no error on the procedure of taking blood sample. She contended that PW3 was the one sent the blood sample to Dar es Salaam. The learned State Attorney disputed the claim that the evidence on record was not properly analysed. She submitted that there were no contradictions and the case was prove beyond reasonable doubt. Page 5 of 18 During rejoinder, Ms. Mgaya learned Advocate for the appellant observed that since the respondent/learned State Attorney agreed ( that the voire dire test was not conducted, the effect was to vitiate the proceedings. And the issue to order trial denovo remained upon the decision of the court. I prefer to start with the complaint that there was none compliance with Section 127 (2) of the Evidence Cap 6. It is a common knowledge that at the time of incident, the complainant (PW2) aged 14 years hence by virtual of Section 127 (5) of the Evidence Act she was of tender age. It is well guided under Section 127 (1) of the Evidence Act that every person including the child is competent to testify on oath or affirmation unless the court is of the opinion that a particular person is incapable of understanding the questions directed to him or giving sound answers to the questions by reason of extreme old age, disease or tender age. In the instant case, PW2 was a child of tender age with that

regard she had to be subjected to the tests prior to the reception of her evidence. And that test is what is called Voire dire test. Section 127 (2) of the Evidence Act has exhaustively given the guidelines to be relied when testing the competency of the child of tender age. Section 127 (2) provide the following: "Where in any criminal cause or matter a child of tender age called as witness does not in the opinion of the court Page 6 of 18 understand the nature of an oath, his evidence received though not given upon oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the ( proceedings, he is possessed of sufficient intelligence to justzfy the reception of his evidence and understands the duty of speaking the truth". The above provision imposes the duty on the trial Magistrate or Judge to investigate whether the child witness knows the meaning of oath. And if the child does not know the meaning of oath the trial Magistrate or Judge must inquire the child on whether he possesses sufficient intelligence and understands the duty of speaking the truth. When it appears that the Magistrate is satisfied with the second test he may receive the evidence though not on oath or affirmation. As I made my though earlier the competence of the child of tender age to testify can only be ascertained by conducting the Voire dire test. With this duty the

Magistrate may put questions to the child and from the answers, the Magistrate may be able to determine whether.the child knows the meaning of oath or she/he possesses sufficient intelligence and understands the duty of speaking the truth. In the case under discussion the learned trail Magistrate who recorded the evidence of PW2, the child of tender age, at page 8 of the court proceeding, marked the following words: Page 7 of 18 ¼' "PW2, Neema Kenned, 14 years old, Peasant Christian, Section 127(5) of TEA complied with sworn and stated". From the above extract, there is no doubt that the trial Magistrate did not comply with the requirement of Section 127 (2) of the Evidence Act. And what it appears can not be named as he conducted Voire dire test. It would at least sound if the trial Magistrate would have said Section 127 (2) had been complied with but not Section 127 (5). The later provision hinges on the interpretation on who is the child of tender age. The former Section, for which to my knowledge was supposed to be complied with, outlines the procedure to be adopted in ascertaining the competency of the child of tender age. At the time of perusing the judgment of the trial court, I came across the reasoning justifying the act of not complying with Section 127 (2) of the Evidence Act. The Hon. Magistrate at page 9 of the judgment paragraph four observed the following: The

issue of conducting Voire dire test it is true that the law require voredire (sic) test to be conducted to a minor so as to cheth if she/he can understand the meaning of telling truth (sic). But if the Magistrate is to the opinion that she/he understand the nature of telling the truth the evidence can be taken and the court can rely on it without corroboration and without voire dire test". It is a trite law that in determining whether the child possessed of sufficient intelligence and understands the duty of speaking the Page 8 of 18 truth, the trial Magistrate or Judge must conduct a voire dire examination. The competence of the child of tender age can not be ( made known by looking at the appearance of the child. Also the competence can not be measured via the class to which the child of tender age is studying. As it was said in the case of Jafason Samwel Vs. Republic, Criminal Appeal No. 105 of 2006 (unreported); how a voire dire test is conducted appears to be a matter of style. But recording questions and answers appears to be a better style because this enables even an appellate court to know whether the questions asked and the answers given were such that any court of law would have come to a conclusion that the child was possessed of sufficient intelligence and understood the duty of speaking the truth. In the circumstances, I concede with the submissions by

both, learned counsel for the appellant and the learned State Attorney that the voire dire test was not property conducted. The evidence of PW2 was not supposed to be relied upon in reaching to a decision. The impacts of non compliance with Section 127 (2) of the Evidence Act have been discussed in a number of cases. To mention some, the matter was discussed in the case of Tatizo Sanga Isaya Vs. Republic, DC Criminal Appeal No. 9 of 2013 (unreported), Jafason Samwel Vs. Republic, Criminal Appeal No 12 of 2015 (unreported) and the case of Mohamed Sainyenye Vs. Republic, Page 9 of 18 Criminal Appeal No. 57 of 2010 (Court of Appeal of Tanzania) unreported. I In the case of Sainyenye, it happened that there was non compliance with Section 127 (2) of the Evidence Act. The court made the following obseivation. "Since the trial court did not comply with the Mandatory provision of Section 127 (2) of the Evidence Act the evidence of PW2 was wrongly admitted and acted upon. The same is expunged from the record". Following the holding above, the trial Magistrate wrongly relied in reaching the decision over that evidence, to my opinion already lost the legal. taste. The evidence of PW2 can therefore not stand alone to warrant the conviction. The other complaint which was vigorously contended by the learned Advocate for the appellant before this court and the trial court is that there were

unthinkable irregularities on the way the sample of Human DNA was collected, transported and analysed. The learned Advocate raised her concern that the sampling officers mentioned were not trained and the laboratory used to collect the blood sample was not a designated place. Also the prosecution evidence remained silent about the person sent the blood sample and at what time the sample was sent to the Chief Chemist. Page 10 of 18 The trial court proceedings avail that PW3, Detective Station Sergent Sinai was the one who sent the appellant, the victim (PW2) ( and the PW2's child to Tunduma Health Centre. PW5 and PW6 being the Laboratory Technicians (doctors) of the said Health Centre supervised the process of collection the blood samples from the appellant, PW2 and the child. And PW3 maintained that she was the one who transported the blood sample to Chief Chemist. The primary point to be determined in this complaint is whether or not PW3, PW5 and PW6 were sampling officers. Section 14 (1), (2) and 3 of the Human DNA Regulation Act No. 8 of 2009 define the name sampling officer to mean a person appointed by the Regulator and also published in the Gazette. It also involves any Medical Practitioner or a Police Officer. In the present case, PW3 is named to be the sampling officer by virtual of being a Police Officer. PW5 and PW6 also according to prosecution evidence qualified to

be sampling officers because they are doctors. A word Police Officer has been well interpreted under Section 3 of the Human DNA Regulation Act (supra) it provides: "Police Officer means incharge of the Police Station and includes any officer above the rank of an officer incharge of the Police Station and also includes when the officer incharge of the Police Station is absent from the station house or unable to perform his duties, the Police Officer Page 11 of 18 present at the station house who is next to the rank to that officer and is above the rank of Assistant Inspector or ( when the Minister for time being responsible for home affairs so directs any Police Officer so present". Pursuant to the above definition, I am now settled that PW3, Dectective Station Sergent Sinai was not a sampling officer at such time. I tend to comment so due to the reasons that,' there is no evidence on record that proves to the effect that PW3 was the Police Officer Incharge of the Police Station. Secondly PW3 was not at the rank above Assistant Inspector and lastly she was not mandated to hold the office by the Minister responsible for home affairs. And if I can presume that PW3 was of the required qualification to be named as sampling officer, there is no proof on record whether the analysis process of the Human DNA was initiated by a written application. Had it been done so, who was the Police

Officer above the rank of Assistant Inspector initiated the analysis process as it is required under Section 25 (1) (2) of the Human DNA Act. Taking into account the above observation it was unlawful for PW3 to be involved in collecting, documenting and transporting the sample for Human DNA to the laboratory for analysis. 'Ms. Mgaya, learned Advocate for the appellant also faulted the chain of custody over the sample of Human DNA. She contended that there was no evidence on record to suffice the fact on who sent Page 12 of 18 or transported the Human DNA sample. And at what time the sample was sent to the DNA Laboratory. ( It is always the duty of the prosecution to prove on how the exhibits are handled. Failure to properly handle and maintain the proper chain of custody of the exhibit renders the prosecution case to be unfound of proof. In Abuhi Omari Abdallah and three others Vs. Republic, Criminal Appeal No. 23 of 2010 (unreported), Rutakangwa J, A held that failure to lead evidence providing a fool proof of chain of custody of potential exhibits is fatal to the prosecution case. Putting aside the fact that the Human DNA sample should be transported by the sampling officer, Section 32 and 33 of Human DNA Regulation Act maintain that the Human DNA sample must be preserved, sealed, labeled and coded in appropriate manner; and it shall be transported through appropriate and

safe means. I have keenly scanned the evidence of the trial court. In fact there is no place where PW3 satisfied the court on the manner of which she transported the Human DNA sample. There is no evidence on how she coded, sealed or preserved. Nevertheless the trial court proceedings are silent on the kind of transport that PW3 used and also the degree of safety has not been well stated.' Page 13 of 18 Following those circumstances, the chain of custody of Human DNA Sample (blood sample) can not be said that it remained intact. (. Failure to state on how the blood sample was sealed, labeled, coded and finally transported draws a cognate finding that there was a cut of chain of custody and the degree of tempering remained high. Another complaint made with the grounds of the appeal is based on the fact that the trial court proceedings were not conducted in camera. And according to the learned Advocate for the Appellant that was a violation of Section 186 (3) of the Criminal Procedure Act, Cap 20. To appreciate the intention of Section 186 (3) I better reproduce it, as it reads: 186 (3) "Notwithstanding the provisions of any other law the evidence of all persons in all trials involving sexual offences shall be received by the court in camera and the evidence and witnesses involved in these proceedings shall not be published by or in any newspaper or other - media but this

subsection shall, not prohibit the printing or publishing of any such matter in a bonafide intended for circulation of the legal or medical professions". Considering the provision above, the law creates a mandatory requirement that all sexual proceedings to be conducted in camera. I have visited the trial court proceedings. It came to the knowledge that at the commencement of the trial, the trial Magistrate marked that the proceedings were conducted in camera. But it was the contention of Ms. Mgaya that the proceeding were never conducted in camera as the result they were made public that is the community attended the hearing. The learned Advocate submitted Page 14 of 18 that by concluding the proceedings in open court, it allowed even the community radio to broadcast the acceleration of the case. ( I have no doubt that, the trial court failed to comply with Section 186 (3) of Criminal Procedure Act. If I. can trust the trial court records, it is evident that Section 186 (3) of CPA was only complied with on 17/08/20 12. But on the other hearing dates, there is no scintilia of trace outs that lead to the satisfaction that the proceedings were carried out in camera. Despite of being notified by the Counsel it appears that, the trial court ended up entering order against the Ushindi Radio to stop broadcasting the court proceedings but there is no mark on the proceedings that the

trial Magistrate adhered to the requirement of complying with Section 186 (3) CPA. The rationale behind conducting sexual proceedings in camera was well stated in the case of Tatizo Sand @ Isaya Vs. Republic, DC Criminal Appeal No. 9 of 2013 (unreported) where Karua J, stated that: "These are quite appropriate provisions they are not meant to decorate the statute but rather they are merit to be implemented. The rationale behind their promulgation is not far to seek. The law require that the entire sexual offence proceedings be conducted in private chambers of the Judges or Magistrates or when the public is excluded from court room often to protect victims and witnesses to Page 15 of 18 speak freely of the occurrences and what is in their minds without fear of being dishonoured. Such hearing would also shield delicate evidential matter and as demonstrated would protect the privacy of the people involved". At this juncture, I am of the considered view that Section 186 (3) of Criminal Procedure Act has to be treated in Mandatory terms and therefore, being not complied with vitiated the proceedings of the trial court. In the foregoing, I suppose there is no point to proceed the discussion over the •rest grounds of appeal. However• the irregularities which shadowed the process of DNA test, taking the voire dire test and the way of conducting the proceedings in court, are all made to

the satisfaction that the trial court proceedings entirely need to be quashed. But I am aware that, generally a retrial can be ordered only when the original trial was illegal or defective. That being a rule in Nathan Baguma @ Rushejela Vs. Republic Criminal Appeal No. 166 of 2015 (unreported) the Court of Appeal of Tanzania observed that it is not a rule of thumb, it will depend on particular facts and circumstance of each case. The test is whether is it in the interest of justice to do so and whether it is likely to cause injustice to the accused. Page 16 of 18 I In the present case it is undoubtedly the fact that PW2 was raped. I tend to agree so because PW2 was of the age of 14 at the time of (.. incident, having been raped she conceived and later she delivered a baby. Also it is evident that the victim PW2 did not pursue her studies for the reason of being impregnated. With those circumstance, the evidence of PW2 herself and that of DNA test were vital to prove the fact that the appellant did rape and impregnated the victim. Unexpectedly the evidence of PW2 was improperly received likewise the chain of custody of the Human DNA sample looked to be suspicious. The issue now can those shortfalls cause injustice to the appellant incase I prefer the case to be retried. It is my settled view that the irregularities are matters of procedure and not fact. The trial court and the

prosecution stand to be blamed. Above all conducting a retrial is the only way to do justice because it will allow the court to know the real person who raped and impregnated the victim. Therefore I order retrial before another competent Magistrate. Dr. M. .Leira - Judge 30/03/2016 Page 17 of 18 'I 4 . Date: 30/03/2016 Coram: Dr. M. C. Levira, J Appellant: Present into custody For the Appellant: Ms. Grace Emmanuel/Ms. Mary Mgaya - Advocates For the Republic: Ms. Hannarose - State Attorney B/C: Mapunda Ms. Hannarose - State Attorney: The matter is coming for judgment and we are ready. Court: Judgment delivered in the presence of both parties. Right of Appeal Explained. - - ,:-•/ Dr.Levjra , ' ) 41 \ Judge •// :--- 30/03/2016 Page 18 of 18