20051005 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 118 OF 2004 , PETER CONSTANTINE ................. APPELLANT Versus THE REPUBLIC .......................... RESPONDENT

JUDGMENT ORIYO, J. Peter Constantine is appealing against a conviction of Rape and a sentence of 30 years imprisonment imposed on him on 12/5/04 by the District Court of Morogoro at Morogoro. He was charged with the offence of RAPE contrary to SECTION 130 and 131 of the Penal Code as amended by SECTIONS 5 and 6 of the Sexual. Offences Special Provisions Act, 1998. The Particulars of the Offence were that the appellant, Peter Costantine was charged that on 29/6/03 at or about 22:00 hours at Nige Village, within the District and Region of Morogoro, did unlawfully have carnal knowledge of one Pris<;:a d/o Frank, who was below the age of 18 years of age. The facts in brief were that the complainant, Prisca Frank and the appellant lived in the same area and had sexual relationship together. On 29/6/03 at 10pm the appellant was arrested at the complainants house where he had gone to sleep. The appellant was subsequently charged, tried and convicted of the offence of Rape. He was sentenced to the statutory jail term of 30 years; pursuant to the I provisions of SECTION 131 (1) of the Penal Code as amended by Act No. 4 of 1998. The appellant felt aggrieved by the conviction and sentence and appealed. His appeal was based on one ground only, namely:- " That the trial magistrate erred in law in conducting the case and grounding a conviction without taking into account the provisions of

Act 21 of 1969, the Legal Aid (Criminal Proceedings) Act.) \ Thereafter followed a long submission on previous decisions of courts of law on the subject matter. On the ground of failure by the trial court to avail legal aid to the appellant in terms of a defence counsel, the appellant prayed for the trial to be declared a nullity and the sentence imposed set aside. The respondent Republic opposed the ground of appeal for a number of reasons. Ms Jacqueline Mrema represented the 2 ..! ' respondent at the hearing. She contended that legal aid was not availed to the appellant because he did not ask for it. Secondly she contended that to qualify for legal aid the charge and / or trial must involve a serious offence with lengthy prison sentence, if convicted and where the trial involves complicated legal issues such as ALIBI, , burden proof, special circumstances, etc. Ms Mrema contended that these two conditions were non-existent in the present case. The appellants long submission in support of the single ground of appeal, cites as authority the decisions of this court in the cases of KALUMBETA VS REPUBLIC (1982) TLR 325 Samatta J. (as he then was); and HARUNA SAID vs REPUBLIC (1991) TLR 124 . Also cited was the Court of Appeal decision ( Nyalali C J; Mwakasendo and Makame JJA ) in the case of LAURENT JOSEPH AND ANOTHER vs REPUBLIC (1981) TLR 351. The right of an accused person to

be defended is provided for under SECTION 310 of the Criminal Procedure Act, 1985 in the following words:- " Any person accused before any criminal court, other than a Primary Court may of right be defended by an advocate of the High Court, subject always to the provisions of any rules of court made by the High Court 3 under powers conferred by Article 26 of the Tanganyika Order in Council, 1920 from time to time in force." The right of an accused person to be defended by counsel at the government expense is automatic where the accused is charged with a serious offence such as murder, treason, etc. The accused person does not have to ask for representation; it is automatically provided, in practice. But for minor offences or uncomplicated ones or those offences punishable with sentences which are not severe or do not involve capital seL)nces an accused may be granted legal aid upon request depending on the circumstances of the case. In this case the offence of rape is not one of those cases where the accused is automatically provided with the services of counsel. The appellant did not ask for such service and that is why the trial court did not refer the matter to the Chief Justice for the provision of free legal aid to him. Further and as correctly stated by the learned State Attorney, the charge of rape has no complications as it is a common offence in our society. In

addition this particular trial had no complicated or serious issues. The trial was a straight forward one, there was no violence involved, the appellant confessed to the police that he had carnal knowledge of the complainant out of her own free will, etc. The appellant became smarter when testifying and denied to have confessed to the police. Even the sentence of 30 years imprisonment is statutory; and the court had discretion under Section 131 (1) the Penal Code as amended to impose a higher penalty up to the 4 maximum of life imprisonment. Under these circumstances even if the appellant had been availed free defence counsel, there is nothing much that would have changed. On the facts at the trial and the law; I do not see how the appellant was prejudiced by the absence of defence counsel. The law as amended, consent is immaterial where , the victim is under 18 years. On the foregoing, the appeal lacks merit and is dismissed. The trial court decision is upheld. ~ \ . \~ K. . rlr.JJ

JUDGE 5/10/2005 05/10/2005: CORAM K. K. Oriya, J. For the Appellant- Present under custody For the Respondent - Ms Angela Lushagara S/A CC: Msekwa MS LUSHAGARA: I am ready for judgment. 5 , , " COURT: Judgment delivered in Chambers in the presence of Ms Lushagara, State Attorney for the Republic and the appellant in person. ORDER: Appeal dismissed. ,:···· ,·;,, K.~

JUDGE 5/10/2005 COURT: Right of Appeal Explained. K.riyo

JUDGE 5/10/05 6