20090518 TZCA Dar es Salaam

.~ ! -~ \ 'f 1 ,... • ~ 1 ;.· j"~ . ; 't I IN THE COURT OF APPEAL OF TANZA~IA

AT DAR ES SALAAM {CORAM: MSOFFE, J.A., MBAROUK, J;A., And ORIYO, J.A.) I CRIMINAL APPEAL NO. 97 OF 2006~ MGAZA MHINA ...................................................... J•••••• APPELLANT

VERSUS THE REPUBLIC ..... : ................................................... RESPONDENT I ··-·-· ------ ---------.•- ··------- --- (Appeal from the decision of the High Ciourt of Tanzania at Dar es Salaam) (Manento, J.K.) dated.the 31 st day of August, 2005; in Criminal Appeal No. 70 of 2005

JUDGMENT OF THE COURT 13 th - 21 st May, 2009 MSOFFE, J.A.: I , . I The District Court of Kinondoni (Ngwawasya, PDM) found the I appellant guilty, and convicted him, of committlng an unnatural . I ' offence contrary to Section 154 of ,the Penal Code. I It sentenced him I to a term of imprisonment for thirty years. Aggrieved, the appellant i appealeo to the High Court of Tanzania at Dar es ~alaam (Manento, - I J.K.). He lost ~~e appeal and has now come to this tourt on a second 2 appeal. He filed a memorandum of appeal with fi~e grounds of complaint. At the hearing of the appeal Ms. Evelyne ~akala, learned I State Attorney, appeared and resisted the appeal on behalf of the I respondent Republic. i In the first ground of appeal it is complained rthat the courts I I below erred in acting on the PF3 while the appellant was not I informed of his right under Section 240 (3) of the Criiminal I Procedure I Act, 1985 (hereinafter the Act) to require the doctor summoned for I cross-examination. In the second ground of appeal :the complaint is that the trial was irregular in that no voire dire ~xamination was conducted before recording the evidence of the cchmplainant, PW2 Ranny Godfrey, a child of tender age. In the third ground of appeal I I it is, also complained that the trial was irregular because it was not I I conducted in camera. In the fourth ground of appeal the appellant I I is

seeking to fault the courts below in not according weight to his I I defence of alibi. The final complaint is that the ch~rge was defective I for indicating that the offence was committed at ~agomeni Mikumi 3 I while the evidence disclosed that it was committed I at I Mwananyamala. I I Before we discuss the grounds of appeal we think it is pertinent I I at this juncture to give a brief account of what led tp the appellant being convicted as charged. I On the 14th day of August 2001 the complainant went to see I I his maternal aunt at Mwananyamala just after coming out from I school in the afternoon. The aunt told him to go back to his home at I I Magomeni Mikumi without wasting more time. On the way back at I about 19.00 hours he met the appellant. He kn~w the appellant I I quite well before that day. The appellant asked the complainant to I I accompany him to his home to see the cows h e was ordinarily· 1 I attending to. The complainant readily agreed. pn the way the appellant pulled the complainant to a bush, ordered him to undress I i and then carnally knew him against the order :of nature. The I I complainant cried for help but nobody came to his~ rescue. Once the i 1 appellant released him he quickly rushed home and narrated the 1 I I 4 ' . ' I I incident to his father, PW3 Godfrey Stephen. PW1 Ta~u Mngala, the I complainant's mother, examined him and saw bruises 9n the anus. I I i I At the hearing of the appeal the appellanti invited us to I determine it in his favour on the basis of the points canvassed in the i I memorandum of appeal. In the proc~ss, he also urged us to take I I into account the evidence of his witness, DW2 Mwanahamisi I Mohamed Mngala, who testified and stated that sh~ too examined I the complainant but saw no signs of the alleged sexu~I abuse.

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I I I In response to the first ground of appeal Ms. Makala conceded I i that the appellant was not informed of the right provided for under I I Section 240(3) of the Act. She contended, however, that the I I appellant was not prejudiced because the PF3 is self explanatory and I that, at any rate, the appellant objected to its admission in evidence. I I With respect, Section 240 (3) is clear. It reads:- I

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I I I (3) When a report referred to in this sJction is· I received in evidence the court may if ~t thinks

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I I I 5 fit, and shall, if so requested by the accus~d or ~ summon a~ examine Or ral\e hIS. adVOCa<.e, :d I I, . available for cross-examination the personi' who , I made the report; and the pourt shall inforf the accused of his right to rei;Juire the perso1 who I I made the report to be summoned in accor1ance with the provisions of this subsection. 1· I Under the above subsection it was mandatory that the appellant be informed of the right to have th~ doctor summrned for cross- examination. We think, however, that even if the/ PF3 were to be expunged from the evidence there was enough evid~nce upon which I I a conviction could still safely lie against the appellant as we shall I I demonstrate hereunder.

I I I Ms. Maka la also conceded that no voire dire/ examination was : I conducted before the evidence of, PW2 was taken. Even so, she I I argued that Section 127(7) of the Law of Evide~ce Act, 1967 as amended by Section 27 of Act No,- 4 of 1998 pe+itted the District Court to receive such evidence and act on it. I

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I I I 6 I I Section 127 (2) of the Evidence Act, 1967 reads ~s follows:- 1 (2) Where in any criminal cause or mati,er a I i child of tender age called as a witness doesI not, I in the opinion of the court, understand the I I nature of an oath/ his evidence may be re~eived I though not given upon oath or affirmationJ if in ! I the opinion of the court, which opinion s1all be I I recorded in the proceeding~ he is posses5ed of I I sufficient intelligence to justify the recepfion of I I his evidence/ and understand the duty I of I I speaking the truth. I

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I I I The trial District Court accepted that PW2 "talks well" before I I receiving his evidence. Fine. But it should have proqeeded to find out i if he was possessed of sufficient intelligence to justify the reception I I of his evidence and that he understood the duty of ~peaking the truth I I when giving his evidence. 1

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I I I ' i - 7 As already stated, Ms. Makala opined that Section 127(7) of the Evidence Act, 1967 as amended, legitimized the evidence of PW2. I The subsection reads:-·

I I I (7) Notwithstanding the preceding provisi~ns of I I this section, where in criminal proceedings inyolving sexual offence the only independent evidence:I is that

I I I of a child of tender years or of a victim of the, sexual I offence, the court shall receive the evidence, and I I I may, after assessing the credibility of the evidence of

I I I the child of tender years of as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not I I corroborated, proceed to convict, if for ret:,sons to be recorded in the proceedings, the icou,t is I satisfied that the child of tender year;s or the ' I I victim of sexual offence is telling nothing but I the truth. [Emphasis supplied.] I I I 8

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I I I In the Oxford Advanced Learner's Dictionary iof I I I Current English, 6th Edition, A.S. _Hornby, the wqrd

I I I "notwithstanding" is defined as:- i ... without being affected by something, inspite of something... The trial Principal District Magistrate was very m,uch alive to the

I I I provisions of the above subsection. He stated:- :

I I I 11 ••• He gave his evidence unsworn. Accorr;/ing to I I the Sexual Offences Special Provisions Act 1998 I Law Amendment suit 127 (sic) of the Evidence Act I No. 6 of 1967 has been amended. His evidenced

I I I (sic) does not necessarily require corroboration. I The court may proceed to convict upqn such

I I I evidence after assessing its credibility end the

I I I court is satisfied that the child or victiin of theI I I sexual offence is telling_ nothing but t1e whole

I I I truth. I have carefully watched Renny: give his

I I I evidence before me, observed his dem~anor and 9 credibility but he has impressed me as nothing put a person who came to tell the truth. I havei no I ' ground of disbelieving him that he was car~ally ' knowledge (sic) by the accused against the order I ' of nature. With respect, there .is no basis upon which we could fault the I Magistrate on the above assessment of the evidence of PW2. I As I ' already mentioned, the Jaji Kiongozi on first appeal also affirmed the I ' I I above assessment. Likewise, we find no basis in faulting him. We I ; will only add that if corroboration was necessary, it "'{as to be found ' I in the evidence of PW1 who upon examination sawi bruises on the I complainant's anus, as stated above. The complaint in the third ground of appea, has a certain amount of truth but it is not entirely correct. Section 186(3) of ' I I the Act as amended by Section 24 of Act No.4 of :1998 provides as I ' ' follows:- i I I (3) Notwithstanding the provisions of any other ' ' '' la~ the evidence of all persons in all t1ials I ' ' involving sexual offences shall be received byi the ' court in camera, and the evidence and witne'sses : I involved in these proceedings shall not: be ' I published by or in any newspaper or other m'{=dia, I ' I but this subsection shall not prohibit the prfnting ' I ' I or publishing of any such matter in a bona fide I ' I series of law

reports or in a newspaper or I periodical of a technical character bona, fide I intended for circulation among members pf the ' legal or medical professions. [Emphasis supplied.} And Section 3(5) of the Children and Young Persons, Ordinance, Cap '' I 13 as amended by Section 28 of Act No. 4 of 1998 re;ads:- , I ' ' (5) Where a child of less than eighteen years of I ' ' ' age is a witness, a victim, an accused or , a co-

I I I accused in a case involving a sexual offence, the : child shall be tried in camera and separately from I 11 ' the co-accused or the evidence of the child shall be adduced in proceedings conduc(ed in camera. [Emphasis supplied.] It is apparent from the record before us that the ~vidence of all ' the witnesses, except that of PW2, was not received by the court in camera. This offended the mandatory provisions of Sec;:tion 186(3) of the Act. But the evidence of PW2 was received,: in camera in compliance with Section 3(5) of the Children and Young Persons Ordinance, as amended. The question is whether the trial was a nullity for non-compliance with Section 186(3) of the Act, as amended. With respect, we do not think so. The proceedings in the ' . open court are not a nullity because there is no indication that there ' was a miscarriage of justice. There is nothing to suggest that the witnesses were inhibited from giving evidence in a f9rthright manner. What appears to have happened is that both :' prosecution and ' ' defence witnesses gave evidence freely. At any r~te, the appellant did not say anywhere that he was prejudiced iby the failure to ·-1 I . I I 12 i. .,/ I observe the mandatory requirement under Section 186(3iof the Act, as amended. / / I.

I I I / I The fourth ground of appeal has rio merit at all. rhe defence I I -I of alibi was never canvassed at the tr/a1. Indeed, it yvas also not I ,I I ,' I raised on first appeal. As it is, it is being raised for the first time. The appellant's defence at the trial Jas a general dlnial of guilt, 1' I J, without more. i1' I I i: ,,

I I I '' ' We are satisfied that PW2 actuc}lly knew the aplellant prior to the date of incident. The appellant cilso knew the cdmplainant. He admitted that much in cross-examina~on. He stated:-/ I I " I know R~nny. Gifrey Stephen ii the child The section (sic) was a male person. ... /I ,' I The incident took place in broad d,aylight. For persons who knew I - , I each other there was no possibility of mistaken /identity. In the circumstances, like the courts below, we too think that DW2 was not , I I' I, a witness of truth. 1, i1 I 13 The complaint in the final ground of appeal I is of no

I I I consequence. From the evidence of the complainant it (s apparent I '' that the offence was committed somewhere at Mwanany~mala. The '' I indication in the charge sheet that it was committed at Magomeni I ' I Mikumi was unfortunate and most likely a typographical error.

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I I I In the event, for the foregoing reasons, the appellant was ' '' rightly convicted by the trial District Court. The /decision was '' justifiably upheld by the High Court. The appeal is dismissed.

I I I DATED at DAR ES SALAAM this 18th day of May) 2009. I J.H. MSOFFE

JUSTICE OF APPEAL ''

I I I M.S. MBAROUK I I JUSTICE OF APPEAL '' K.K. ORIYO

JUSTICE OF APPEAL 14 I certify that this is a true copy of the original. P.B. rfAJ)AY

DEPUTY REGISTRAR

COURT OF APPEAL I