20170328 TZHC Mbeya 1

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIMINAL APPEAL NO. 56 OF 2016 (Original Criminal Case No. 12 of 2014 from the District Court of Chunya) MANDISELA KUNGURU .............................. APPELLANT VERSUS T HE REPJPLIC.................................... RESPONDENT JUDGMENT Date of last order: 20. 02. 2016 - Date of Judgment: 28. 03. 2017 L Dr. M. C. Levira, J The appellant Mandisela Kunguru was charged of Armed Robbery and convicted after pleading guilty to the charge at Chunya District Court. He was sentenced to serve 30 years in prison. Aggrieved by the decision of the District Court he filed his appeal against the conviction and the sentence. The grounds of appeal according to the petition of appeal are as follows:- 1. That the trial Magistrate erred in law point and fact 2-0 when he convicted the appellant by believing that the appellant pleaded guilty to the charge, regard the appellant is uneducated and he is fluent with Sukuma 7 01 language only so that when the charge read against him he replied positive while he did not wish to do so, (sic) also the appellant did not understands (sic) the nature of an offence he was charged with it. That the trial Magistrate erred in law point and fact when he tried two different case (sic), this case and No. 11'2016 of unlawful possession of ammunition and sentenced the appellant to 15 years imprisonment in the same court while there was another Magistrate who may heard (sic) another case. Here it means the ro trial Magistrate Mr. Ngatunga DRM to hear two different cases believed that the appellant was a habitual criminal while it was not so. That the trial Magistrate erred in law point and fact when he convicted the appellant by believing that he pleaded guilty to the charge (sic) regard the duty of the court is not to read over the charge against the appellant as did in this case by the trial court but the trial court before to pass conviction against the appellant (sic), the trial Magistrate did not ensure 20 whether the appellant understands all elements of the charge as insisted in the case of Republic Vs. Joseph Aiphonce (1969) HCD No. 106 (sic) and such principle insisted in the case of Kato Vs. Republic EACA Cr. App. 33 Pg. 71 (1971) HCD No. 364. That the trial Magistrate erred in law point and fact to hear this case Criminal No. 12'2016 of Armed Robbery and Criminal Case 11'2016 of unlawful possession of ammunition as two different cases while the incident occurredin the same date (sic). That the trial Magistrate erred in law point and fact when he convicted the appellant by believing that he jo pleaded guilty to the charge, regard Section 360 (1) of CPA Revised Edition 2002 states that "No appeal shall be allowed in the case of an accused person who pleaded guilty and has been convicted on such plea by subordinate court except as to the extent or legality of the sentence". (sic). So that the appellant decided to plea in this case because the said admission of the appellant to the charge was equivocal. Please Hon. Judge for the circumstances of the said admission reach of retrial of this case (sic). That charge against the appellant not proved (sic) by the prosecution side beyond reasonable doubt. The appellant prayed for this appeal to be allowed, conviction be quashed and sentence set aside. Page 3 of 16 11 Swahili language that is why in page 3 of the proceedings he responded in Swahili and at page 6 he explained that he has two children, wife and mother who depend on him, this indicates that he understood what was taking place in court. Regarding the 2nd and 4th grounds of appeal, the learned State Attorney opposed the claim that the trial Magistrate believed that the appellant is a habitual offender simply because he entertained another matter which involved the appellant. She was of the view that, this ground of L appeal is baseless because it is a new thing the appellant is trying to bring in court. Had it been that the appellant had such complaint he ought to have complained at the trial court; that, he had no confidence with the trial Magistrate. The learned State Attorney added that, in accordance with Section 360 (1) of the Criminal Procedure Act, Cap 20 Revised Edition 2002 no appeal shall be allowed on a plea of guilty except on legality of the sentence. Finally, she prayed for this appeal to be dismissed. In rejoinder the appellant stated that the did not tell the trial Magistrate that the has dependants. He also stated Pge6t6 27 ammunition and threatened victim and his friend". [Emphasis added] I commanded to give me anything they had. The victim gave me money amounting to Tshs. 1,900,000/=, a cellular phone and the ring. [Emphasis supplied]. Then, I departed from the place and fled away. Your honour, on 15/01/2016 I were (sic) arrested at Mbanga hamlet in Mapogolo Village and send me to Police Station (sic) and on 18 / 01 / 2010 the same allegation brought before this court for trial. Accused: Signature xxx Public Prosecutor's: Signature xxx". Following the above appellants confession, the court made a finding that the appellant admitted both the charge and facts of the case which were submitted in court save the amount of money he stole form parties. All the ingredients of the offence of Armed Robbery were met and thus the trial court was of the view and satisfied that the accused committed the offence he stood charged. Consequently, the court convicted the appellant on his 2 - own plea of guilty and thus sentenced him to 30 years imprisonment. At this juncture therefore, this court finds that there is only one main issue to be considered in the current appeal. The said issue is whether the appellant's plea was equivocal. In considering this issue two important things shall guide. The issue of language barrier and the understanding of the appellant to the charge and the facts as read over to him at the trial court and whether j. o he confessed. However, I do not think that the first element regarding language barrier should hold me much. In his complaints the appellant claimed that he is only fluent in Sukuma language and not Swahili language used in court. This point was already addressed by this court when interviewed the appellant and confirmed that he understands Swahili. At trial court when the charge was read over to the appellant he responded in Swahili "kweli" meaning that he committed the offence charged with. As if that is not enough the o appellant narrated the facts of the case in his admission while confessing that he real committed the offence Page 10 of 16 I;j charged with and the facts were true. This can vividly seen in the quotation above extracted from the trial court proceedings from page four. I totally agreed with the learned State Attorney Ms. Hannarose that the appellant understood the language used in court and therefore his claim or complaint is baseless. Looking at the second limb in answering the issue at hand, it is necessary to consider whether or not the appellant understood the charge and the flankling facts of the case. I wish to remark that what the appellant said to at the trial must be considered in light of the context of the records as they appear. The plea becomes equivocal when is ambiguous, uncertain or forcibly taken. I had enough time to go through the proceedings of the trial court, I must admit that I have not been able to come across any indication suggesting that the appellant plea was equivocal. On 20/01/2016 was when the case was scheduled for preliminary hearing and the appellant was arraigned before Chunya District Court. The court ordered the Page4LoL1 ;~ q, appellant to be reminded the charge and the accused entered his plea where he said "kweli". Apart from that plea, the brief facts of the offence namely Armed Robbery were narrated to the appellant by pinpointing the underlined ingredients; and, as a result the appellant admitted all the facts moulding the offence. As a matter of being precise, the words of the appellant were recorded as quoted above. For interest I will requote some of the appellants phrases which clarify that he really admitted to had committed the offence as follows: "I took local muzzle loading gun that using a short gun ammunition and threatened the victim and his friend". He added that: "I commanded to give me anything they had. The victim gave me money amounting to Tshs. 1,900,000/=, a cellular phone and the ring Then I departed from the place and fled away... ". For the immediate purpose of the present appeal and taking into account the facts so admitted, I am in respectful agreement with the learned State Attorney that the plea of the appellant was unequivocal or without ambiguity and he clearly admitted to all elements covering the offence of Armed Robbery as the law provides in Section 287A of the Penal Code Cap 16 Revised Edition 2002 that: "Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument, or is in company of one or more persons, and at or immediately before or immediately after the time of the stealing uses t or threatens to use violence to any person, commits an offence termed "armed robbery" and ..." [Emphasis added]. Additionally, I am of the firm view that the conviction entered by the trial court fell in the perview of the principle laid down in the case of Rex Vs. Yonasani Egalu & 3 Others [1942 - 19431 IX - X EACA 65; the court reasoned in the following words: "That in any case in which a conviction is likely to proceed on a plea of guilty (on other words when an admission by the accused is to be allowed to take place of the otherwise necessary strict proof of the charge beyond reasonable doubt by the prosecution) it is most 3) desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every constituent and that what he says should be recorded in the form which will satisfy on appeal court that he fully understood the charge and pleaded guilty to every element of it unequivocally". Standing as it appears, the records of the trial court are very clear that the appellant understood the charge /0 against him as a result he admitted them to be true and correct facts as he stated exactly what he did to the victim. It is the finding of this court that the appellant entered the plea of guilty freely without being induced in any way. He is now estopped from claiming that his plea was equivocal or he did not mean to plead guilty to the charge. With that respect, the act of the appellant appealing on his own plea of guilty contravenes Section 360 (1) of the Criminal Procedure Code, Cap 20 Revised ~ Edition 2002 as correctly pointed out by the learned State Attorney for the responded, Republic. For easy reference the provision provides as hereunder: "No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been, convicted on such plea by a subordinate court except as to the extent that or legality of the sentence". In the event, I agree with the learned State Attorney that the only appeal ought to had been preferred by the appellant could have been against the sentence. Thus, the complaint against the plea of guilty lacks legs to stand and the appellant was rightly convicted. ID Being as such, and for the reasons stated above, I dismiss this appeal. Dr. M. C. Levira Judge 28/03/2017 Page 15 of 16 Date: 28/03/2017 Coram: Hon. Dr. M. C. Levira, J Appellant: Present Respondent: For the Republic: Ms. Gwaltu - State Attorney C/C: Margareth Mhagama Ms. Gwaltu - State Attorney: The matter is coming for judgment we are ready. Court: Judgment delivered in presence of Ms. Gwaltu State Attorney and the appellant this 28th day of March, 2017. Right of Appeal Explained. f• ) Dr. M. C. Levira •~ 4 Judge '.. •_______/' ./ 28/03/2017 ,. Page 16 of 16 37