Nissa William vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANZANIA

AT MBEYA

APPELLATE JURISDICTION (Mbeya Registry) DC CRIMINAL APPEAL NO. 146 OF 2004 (From Mbeya District Court Criminal Case No. 508 of 2002) NISSA WILLIAM ............................ APPELLANT

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

JUDGEMENT OTHMAN, J. This is an appeal by Nissa s/o William against convicting by the Mbeya District Court on 16/11/04 for commission of an unnatural offence c/s. 154 (1) (a) of the Penal Code, and sentence to 30 years imprisonment, and an order of 12 strokes corporal punishment. The appellant’s petition of appeal instituted on 23/12/04 faults the trial court in law and facts for the following. Ground 1: Convicting, sentencing and ordering corporal punishment for an offence, which the prosection failed to prove beyond all reasonable doubt; Ground 2: Relying in its decision, on Exhibits P.l and PW.2 (PF.3 Form) which were admitted by the court without offering the appellant an opportunity to peruse or read them, acts that resulted in the condemnation of the appellant unheard, and a breach of the principles of natural justice, and that there was no reasonable explanation as to why there were two exhibits, which occasioned a miscarriage of justice; Ground 3: Considering that Exhibits P.l and P..2 revealed venereal diseases, which the prosecution did not take any trouble to find out whether the appellant was suffering from venereal diseases as an indication of whether he may have raped P W.

1. At the trial court, the particulars of the charge were to the effect that on 10/9/02 at Manga, Mbeya, the appellant, then a Form II Secondary School student did have carnal knowledge of PW. 1, 5 years old, against the order of nature. At the appeal hearing on 30/8/05, Mr. Mwakolo, learned Counsel for the appellant amplified the 3 grounds of appeal. First, he submitted that P W .l’s testimony was incomplete, as she did not specify how the offence was committed, and whether she had been raped or unnaturally offended. That her oral testimony differed from Exhibit P.2, her PF.3 Form that recorded that she was not a virgin. It also did not show that she had any injuries on the anus. Second, Counsel faulted the trial court for non-compliance with section 127 (2) of the Evidence Act, 1967 on the reception of the evidence of a child of tender years. It did not conduct a voire dire examination of PW .l. Third, he pointed out that Exhibit P.l (the appellant’s PF.3 Form) stated that he had venereal diseases. Exhibit P..2 did not say that PW.l had the same. Fourth, that the prosecution case was that the offence was committed on 25/09/02. The appellant was arrested only in November 2002. No reason was offered why the police took a longtime, when PW.l testified that the appellant was a neighbour. He was then attending school. Fifth, Counsel pointed out that no explanation has been given

why P W .l’s aunt, who reported the incident to the police was not called or re-examined by the prosecution. It was the appellant’s claim that she wanted him to make love to her, and on his refusal she counseled PW.l to make the allegations. Sixth, that when Exhibits P.l and PW.2 were tendered, the appellant was neither given an opportunity to examine them, nor were they read out in open court. This constituted a denial of the right to be heard, and to defend oneself. The Republic, represented by Mr. Nyenza, learned State Attorney did not object to the appeal. The principal grounds of support were that the trial court failed to comply with section 127 (2) of the Evidence Act, 1967 in respect of PW .l. Reliance was placed on Francis Matovu v. R. (1961) E.A.

260. It was also submitted that in fact PW.l testified twice. On 4/05/04, and on 11/05/04. Apart from these procedural errors, the learned State Attorney added that the trial court did not comply with section 127 (2) of the Evidence Act, 1967 relating to instances where the only independent evidence is that of a child of tender years or a victim of a sexual offence. Mr. Nyenza also raised concern on the unexplained delay in the reporting of the incident, which according to the charge sheet took place on 10/09/02. It was reported on 25/9/02 (PW.2), and the appellant was arrested in November 2002. It was his view that in the circumstances, the Head Master of the Secondary School the appellant attended, should have been called by the prosecution to testify. Finally, he submitted that all of the above created doubt in the prosecution case, which was not proved beyond reasonable doubt. It is well established that a first appellate court is entitled to scrutinize and re­ appraise the evidence before the trial court, account taken that it does not, as the former court, have the net advantage of observing and hearing the direct testimony of the witnesses. Given the connecting tissue in the appellant’s ground of appeal, and their combined treatment by the parties at the oral hearing of the appeal, I shall also deal with them collectively. Those grounds canvass both the law, and the

evidence before the trial court. A careful examination of the record, and material reveals an irregularity occasioned at the outset by the trial court in the conduct of the trial. First, PW .l, the key prosecution witness, then 7 years of age testified twice. Namely, on 4/05/04, and then again on 14/05/04, ten days later. The only material fact she said on 4/05/04 was that the appellant stayed near her home. Testifying for the 2nd time on 14/05/04 she told the court she lived with her parents. That one day the appellant came to her house, found her with his brother cooking food, and took her on his shoulders to his house. He placed her on the bed, came on top of her, took of her underwear and had carnal knowledge with her. She cried. She left, and told her to return home. On the return of her aunt (A.M.) the next morning she informed her. The matter was reported to the police. On cross- examination by the appellant, PW.l responded that there was nobody at the appellant’s house. That he had threatened to beat her should she cry out. Nobody had taught her to accuse him of rape. PW.l also stated that on the first day in court she was afraid to say anything as he had threatened to beat her. In its jugdgement the trial court relied on the evidence received on 14/05/04. It said nothing on that recorded on 4/05/04. It is plain that this is an irregularity, and an unexplained one. That aside, the trial court misdirected itself in not complying with section 127 (2) of the Evidence Act, 1967 when it received the evidence of PW.

1. It omitted to conduct a voire dire examination. It is settled law that this omission brings such evidence to that of an unsworn evidence of a child of tender years, which requires corroboration (Deemav Daati and 2 Others v. R., Criminal Appeal No. 80 of 1994 (CA) (unreported); Kisiri Mwita s/o Kisiri v. R. (1981) TLR. 218). Re-examining the evidence, the discrepancy on the date the occurrence is alleged to have taken place cannot be overlooked. The charge sheet preferred on 6/11/02 puts in on 10/9/02. PW.l testified that she reported it to her aunt (A.M.), the next day. PW.2, a police officer, said it was reported on 25/09/03. PW.3, another police officer who issued Exhibit P.2 (i.e. P W .l’s PF. 3 Form) testified that the complainant was received on 23/09/02 at noon. Exhibit P.2 is dated 23/09/02. It would appear to me that reliance could be placed on the date of the PF.3 Form as indicative of the day the matter was reported to the police by P W .l’s Aunt. That clarified, it is plain from the evidence that the appellant was arrested on 3/11/02. That was 41 days after the alleged occurrence was officially reported. It is in evidence that he was a neghbour (PW.l, DW.2). He was then in Form II, and attended Secondary School. DW.2 who lived in the same house as PW.l testified that he never heard of the incident. PW.2 told the court that in September 2003 they approached

the Headmaster who informed them that the appellant has absented himself for 3 consecutive days. No explanation was offered to account for the substantial delay in the arrest of the appellant by the prosecution. I agree with the submission of Mr. Nyenza, Learned State Attorney that the Headmaster should have been called to testify to provide illumination on the circumstances of the arrest, and the reporting of the incident. As stated earlier, the evidence of PW.l leveled that of unsworn testimony of a child of tender years. It needs corroboration to sustain a conviction. The question is whether Exhibits P.l and P.2 offered the same. Exhibit P.2, (i.e. P W .l’s PF.3 Form) was issued, and recorded on 23/09/02. Exhibit P.l, (i.e. the appellant PF.3 Form) was in turn issued and recorded on 5/11/02. To the extent that there is an interval of 43 days between then, with respect, it is not correct as contended by Mr. Mwakolo, Learned Counsel for the appellant in ground 3 of the appeal that PW.l should have also been found with venereal diseases as the appellant had them. The medical examination of PW. 1 and the appellant was not contemporaneous. The appellant could well have contracted the disease after 23/09/02, the date PW. 1 was medically examined. On the other hand, I fully subscribe to Mr. Mwakolo’s submission that there are lapses between P W .l’s oral testimony and Exhibit P.2.

PW.l testified that she was raped. Both PW.2 and PW.3 said that the incident was reported as such by P W .l’s aunt. It is not in P W .l’s evidence how that alleged rape was committed. She also did not tell the court whether, or how she had been unnaturally offended. Exhibit PW.2 records therein that P W .l’s virgin-hymen was not intact, had no bruises and her virginity had already been broken. Furthermore, that the time lapse would not allow appearance of spermatozoa. It is stated that she had circumstantial bruises around the anus and suffered carnal traumalization. From the above, it is apparent that what PW.l testified, and what PW.2 and PW.3 were told by her Aunt, that she was raped is not what is reflected on Exhibit P.2. On the other side what Exhibit P.2 states are injuries that go to the commission of an unnatural offence. PW. 1 did not say anything in court on that. In its consideration of these exhibits, and the evidence as a whole, the trial court failed to direct itself on these material discrepancies that go to the root of the matter. To say the least, they considerably weaken the prosecution case as submitted by Mr. Nyenza, Learned State Attorney. In ground 2 of the appeal, Mr. Mwakolo faulted the trial court for neither reading out in open court the contents of Exhibits P.l and P.2, nor giving the appellant an opportunity to peruse or read them. That this led to

the accused’s condemnation unheard. A breach of natural justice that occasioned a miscarriage of justice. Although the admission of Exhibit P.l and P.2 was not objected to by the appellant, it was a procedural irregularity for the trial court not to have read their contents or give an opportunity to the appellant to examine or read them. This curtailed the right of the appellant to mount his defence, especially as regards Exhibit P.2 whose contents he had no knowledge of. The ability of an accused to make full answer and defence is a fundamental principle of justice. It is a part and parcel of the right to a fair trial, and is a reflection of community interest for the trial process to arrive at the truth. Ground 2 of the appeal is made out. A close examination of the trial court’s judgement cannot fail to detect another serious misdirection. In outlining the issues for decision, the learned trial magistrate sated: “the court has to determine whether or not the complainant, had been raped. Second, if she was raped, whether or not she was raped by the accused person, and not any other person else. Thirdly, if she was raped by the accused person, whether or not in so doing the accused had any justification’. (Emphasis added). It is apparent from the above that the trial court was directing itself on rape. The offence charge was the commission of an unnatural offence c/s. 154 (1)

(a) of the Penal Code. In this regard, the trial court was evaluating the evidence against a different offence. Furthermore, in its judgement, the trial court found it as a fact that PW.l had been raped on 10/09/02. This material fact was not established in the evidence. PW.l did not even mention that date. There is yet another point canvassed by Mr. Mwakolo, Counsel for the appellant. He put forward that an adverse inference should be drawn for not calling P W .l’s Aunt to testify. It was the appellant’s defence that she wanted him to make love to her. He refused. This influenced PW.l to name him as her rapist. On his part, Mr. Nyenza, learned State Attorney also submitted that another adverse inference should have been drawn for the non-convocation of the appellant’s Headmaster to explain the circumstances, and the delay in the former’s arrest. It remained unexplained. Considering the seriousness of the charge, and the evidence before the trial court, I subscribe to the views expressed that in the circumstances of the case, it was important for the prosecution to have examined these two potential witnesses to support it’s case. Although under no duly to call and examine each and every person acquainted with the material facts, and willing to testify, in the particular context of this case, their non­ production does not assist the prosecution in filling up the evidential gaps

borne out by the proceedings. It is well settled law that in a criminal charge where the case is left open to possibilities of doubt, the prosecution is said to have failed to discharge its duty of proving the case beyond all reasonable doubt. (Adriano Juma Ali v. R.. Criminal Appeal No. 92 of 1999 (CA) (unreported)). In the disposition I am about to grant, consideration has been given as to whether there is any merit in remitting the case for retrial as some of the procedural faults are clearly attributable to the court. In deciding whether a court should exercise its discretion to order or not a new trial the strength of the evidence adduced against the accused in the previous trial is clearly one of the factors to be taken into account (Au Pui- Knew v. Attorney-General of Hong Kong, [1979] 1 ALLER 787, at 773). Upon hearing both parties, I share their submissions that a retrial will not only seriously prejudice the appellant, but also that probative evidence to sustain a conviction is lacking. Moreover, it would make P W. 1 testify a third time, hence the possibility of evidential patch up cannot be excluded. The above considered, a new trial is not warranted. In the final analysis, and with all the above, I find that Grounds 1 and 2 of the appeal made out. On the whole evidence, given the serious irregularities and misdirections committed by the trial court, and the cumulative effects of the evidential gaps in the prosecution case, I hold that it has not proved the charge beyond all reasonable doubt. The trial court’s conviction is hereby quashed. The sentence and order imposed are both set aside. It is ordered that the appellant be released forthwith, unless otherwise lawfully held. Appeal allowed.

JUDGE 6/9/05 Date: 20/9/05 Coram: Hon. Othman, J. Apellant: Present. Mr. Mwakolo, Advocate for the Appellant. For Republic: Miss Kileo, State Attorney. C/C: Mrs. Mponzi. Judgement delivered in the presence of the Appellant, and Mr. Mwakolo, learned t] !Counsel for the appellant, and Ms Kileo learned State Attorney. / M. C* OTHMA!

JUDGE 20/9/05