lukas nyakunga vs the republic 2010 tzhc 188 21 july 2010

IN THE HIGH COURT OF TANZANIA

AT IRINGA DC CRIMINAL APPEAL NO. 4 OF 2010 (ORIGINATING FROM IRINGA DISTRICT COURT CR. CASE NO. 416/2004 LUKAS NYAKUNGA ............................. APPELLANT

VERSUS THE REPUBLIC...... .............................. RESPONDENT

JUDGMENT MKUYE. J The appellant LUCAS NYAKUNGA was arraigned before the District Court of Iringa at Iringa for an offence of rape contrary to sections 130 (1) and 131 (1) of the Penal Code, Cap 16 R.E.

2002. Following a full trial the appellant was not found guilty w ith.the offence of rape instead he was found guilty with an offence of attempted rape. He was then convicted accordingly and sentenced to im prisonment of the term of 30 years. Dissatisfied with both * conviction and sentence, he has appealed in this court. The appellant has fronted 7 grounds of appeal which after a careful scrutiny, they all hinge on one ground that is the prosecution l did not prove the case beyond reasonable doubts. The appellant appeared in person while Mr. Mwandalama learned State Attorney represented the respondent Republic who sought to support the appeal. The learned state attorney in support of his position of not supporting the conviction and sentence argued that one, though PW1, the victim , was aged 14 years old so as not to require proof of lack of consent on her part as per section 130(2) (e) of the Penal Code, her evidence was recorded without viore dire exam ination being conducted. Hence, he argued, her evidence was reduced to an unsworn evidence that required corroboration. He cited the case of Harman Heniewele V R Crim. App. No. 164 of 2005 Mbeva Registry (UnrejDorted) at pg 17 in support. He further argued, such evidence for corroboration lacked. Two, PW2, the victim s' father and PW3, P W l's young sister's evidence could not corroborate as the two witness did not explain

how they identified the appellant when considering that the offence was committed at about 19.00 hrs (night). PW1 also did not clearly establish how she identified the appellant as she said when appellant arrived he kicked the lamp, got hold of her and raped her. The learned state attorney further attacked PW3's evidence in that though viore dire exam ination was conducted, the trial m agistrate did not satisfy him self that PW3 understood the duty of speaking the truth. And that rendered PW3's evidence to the level of unsworn evidence which could not corroborate the evidence of PW1. Three, there were irregularities in the proceedings, Mr. Mwandalama contented, in that the prelim inary hearing was not 2 conducted as provided for under section 192 of the Crim inal Procedure Act and that the trial of this case was not conducted in camera as required under section 186 (3) of the CPA and Section 3 (5) of the Children and Young Persons Act, Cap 13 R.E.2002. * It is quite true that where the offence of rape is committed to a girl under the age of 18 years the prosecution is not required to prove lack of consent. Section 130(2) (e) of the Penal Code is clear on this. It provides: ’7\ m ale person com m its an offence o f rape if he has sexu al intercourse with a g irl or a woman under the circum stances falling under any of the following description: 3 )

..................................................................................... b) ........................ c) ....................... .... d) ................................. e) with or without h er consent when she is under eighteen years o f age, unless the woman is his wife who is fifteen or m ore years o f age and is not separated from the m an" The m ajor issue, however, is whether, even without proving lack of consent there is sufficient evidence to warrant conviction of the appellant. It is com mon ground that PW1, the victim s' evidence was relied upon in convicting the appellant. PW1 was 14 years old when she testified and as such, under section 127 (2) of the Evidence Act viore dire test was required to be conducted before the reception of her evidence. Section 127 (2) of the Evidence Act provides: "1 2 7 (2) Where in any crim inal cause or m atter a ch ild o f tender age called as a witness does not; in the opinion o f the court understand the nature o f oath , his evidence m ay be received though not on oath or affirm ation if in the opinion o f the court , which opinion shall be recorded in the proceedings , he is possessed o f sufficient intelligence to ju s tify the reception o f his evidence and understands the duty o f speaking the truth". Subsection (5) of section 127 defines "a child of tender age" to mean "a child whose apparent age is not more than

fourteen years". In the instant case, though PW1 was not aged 14 years, no viore dire exam ination was conducted so as to ascertain whether she possessed sufficient knowledge to ju stify reception of her evidence or not (See Dhahiri Ally V Republic (1989) TLR 2 7 . Also See Vernard Costa V R Crim. App No. 229 of 2007 fArusha) Unreported. It is therefore not known whether PW1 understood the nature of oath or not. Nor is it established whether she possessed enough intelligence to justify the reception of her evidence and she understood the duty of speaking the truth. Under this situation, the trial m agistrate failed to comply with the m andatory provisions of section 127 (2) of the Evidence Act. 4 Many authorities of the Court of Appeal, however, have set a clear position that where the evidence of a child of tender age is received without conducting a viore dire examination, such evidence has to be treated as unsworn evidence (See Deemav Daat and 2 Others V R Crim A d d . No . 80 of 1994 (CAT) Unreported. Such evidence would, however, require to be corroborated as was held in Harman Heniewele Case (supra'). In that case it was held: " ..... the evidence o f a child o f tender age which is given on oath b ut without conducting viore dire exam ination under section 127(2) o f Evidence A ct should be treated as unsworn evidences which requires corroboration". PW1 gave unsworn

evidence. As such as explained above it requires corroboration. The question is whether there is evidence that can corroborate it. As quite rightly expounded by the learned state attorney, the evidence that would be taken to corroborate P W l's evidence is that of PW2 and PW3. The evidence of the two witnesses, however, as rightly explained by Mr. Mwandalama cannot be taken to corroborate P W l's evidence because, one, P W l's evidence that on arrival the appellant kicked the lamp, got hold of her and raped her shows that it was dark. Thus a lamp was lit to provide illum ination. PW3 then rushed to call her father (PW2) who was at a neighbouring house. This witness did not explain how she was able to identify the appellant at night and for that m atter when taking into account that the lamp was kicked away. PW2 as well said, at his arrival at the scene of crime he saw the appellant whom overpowered him and he failed to apprehend him. 5 This witness as well did not explain how he managed to identify the appellant during darkness. Moreover, PW1 herself did not explain the light and its intensity which enabled her to identify the appellant. It m eans, none of the three witnesses explained the light which enabled ►him /her to identify the appellant. Light is very crucial in visual identification especially so during the night. Not only that, but its intensity has to be explicitly

stated (See Kulwa Makwaiape and 2 Others V R Crim . Appeal No. 35 of 2005. In totality PW1, PW2 and PW3's evidence regarding identification was not w atertight. PW2 and PW3's evidence which in essence hinged on identification was not sufficient to corroborate P W l's evidence. Further to that, the evidence of PW3 fell short on its reliability. It did not as rightly submitted by the learned state attorney com ply with the requirem ents of Section 127(2) of the Evidence Act and also as was stated in Dhahiri's case (supra). PW3 was 11 years old. After viore dire exam ination was conducted, the trial m agistrate was satisfied that she did not understand the duty of speaking the truth. This means, her evidence was treated as unsworn evidence which required corroboration in itself as it was held in Vernard Costa @ Nsuri V R Crim. App. No. 229 of 2007 (Unreported) where it was held: "The unsworn statem ent o f PW1 required corroboration to found a conviction o f the appellant". * It is however, trite law that the evidence requiring corroboration cannot corroborate other evidence required to be corroborated. (See 6 Hatibu Gandhi and Others V R (1996") TLR 12 at pg 61 while citing the case of Palalar Melaram Bassan and Wathiobia s/o Kvambuu V R ('1961') E A 521 at pa 530 where the East African Court of Appeal stated: "It is true that as a general rule evidence which itse lf requires

corroboration cannot provide corroboration for other evidence also requiring corroboration Under the circum stances, the evidence of PW3 for this reason could not also corroborate P W l's evidence. At the end of the day after going through the whole record, I could not find any evidence which corroborated P W l's evidence that it was the appellant who raped her. There were procedural issues raised by the learned state attorney regarding non conducting of prelim inary hearing under section 192 of Crim inal Procedure Act and failure to hold the trial of this case in camera inaccordance to the provisions of section 183(3) of the CPA and section 3 (5) of the Young Persons Act Cap 13 R.E. 2002 since it involved a child of a tender age. I find the observations to be valid as indeed, prelim inary hearing was not conducted. Equally, the proceedings of this case were not held in camera. The learned state attorney did not, however, state whether the shortcom ings were fatal or not so as to invalidate the proceedings. With regard to failure to conduct prelim inary hearing it was held in Paai Msem akweli V R TLR 3 3 1 : 7 " That unless the om ission to conduct a prelim inary hearing had resulted in an unfair trial leading to a failure o f justice, which was n ot the case in casu, it could not be held to be fatal to a proceedings". In this case as well, I did not see any indication that

unfair trial was occasioned to the appellant due to failure to conduct the same. The appellant had cross examined the prosecution witnesses and was also given an opportunity to defend himself. With regard to non com pliance with section 183 (93) of CPA and section 3 (3) of the Children Young Persons Act it is equally true. There are am ple authorities that if failure to com ply with the same occassioned m iscarriage of justice to the appellant then the irregularity is fata I. (See Laureno Mseva V R Crim. A dd . N o . 430 of 2007 (Mbeva) (Un re ported). In this case equally I find that there was no failure of justice on the part of the appellant as he cross examined the children of tender age and they gave rational answers to the questions posed to them. After all, if anything that failure of justice would have affected the victim duje to her age and not the appellant. (See Laureno Mseva's case) (supra). But be it as it may, in this case, since the identification evidence was not w atertight together with the absence of corroboration evidence to corroborate P W l's evidence, I like the learned state attorney, am of the firm view that there was no sufficient evidence to found conviction of the appellant. 8 In the event, with the aforegoing reasons, I allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released forthwith unless otherwise lawfully held. R.K.MKUYE

JUDGE 21/7/2010 Right of appeal explained. R.K.MKUYE

JUDGE 21/7/2010 Coram: R.K.Mkuye, J For Appellant: Present For Respondent: Ms Ngilangwa State Attorney C/C: Mr. Charles Delivered on this 21st day of July 2010 in the presence of Lucas Nyakunga the appellant and Ms Ngilangwa State for Republic. 9