19971029 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA AT DAR, ES SALAAM CR. REVISION NO. 5/1997 ( Originating from RJ.vPs Court 'of Ilala at Kisutu Criminal Case No~ •• 934/1995) REPUBLIC ••••••••• V/S ••••• SAIMON BERNARD & 3 OTHERS

R UL I NG ------ NSEKELA, J': This matter has originated from Kisutu .RJVI' s Court Criminal Case No. 934/95. On 4.7.96 a preliminary enquiry was conductEQ and nearing of the cs.,se was scheduled for 12.8.96 only to be ad,journed to 16.6.96. On this date, that is, 16.6.96, Mr. Mwakasege, learned advocate for the 2nd accused made an appli- catior. before the trial magistrate, Chilonji Principal Resident Magistrate, t~t his client be supplied with statements of .. . witnesses and 1accused persons made at the Police Sta~ion during investigation. This application was purportedly_mad12- undtr section 9 l3.) of the Criminal Procedure Act (CPA) ,.<:·.fifr. :Jl'undu, learnedi.adbocate for the 1st accused made a similar application. ·The public prosecutor on his part vigorously resisted the application in the fellowing words:- HYour Honour under this section the statement that can be·supplied is that of the person who gave information that led to the arrest of the· accused person. 'de are ready to supply that statement but not the state-- ment of all the accused persons •. The ~ ·t statements of other witnesses can only be supplied to the defence at the hearing to f~cilitate cross-examination. There is danger to supply statements for all . witnesses which can enable the defence to interfere with the witnesses_ c1.nd the witness can disappeaI?.. 11 .•... /2 had this ;; My undr::rstanding

o:f this sc~ction which understanding I have subj,jected myself to the higher courts for directi,m in a number of cases whenEver such applicc,tion was made s.nd I allovved the rJ.pplication 211d the Republic appeal2d against that decision is that the defence is entitled to get such E,tatement •••••• n Aggrieved by this Ruling, the Director of Public Prosecu- tions requested f:H' rc:Vision oi' this ?._uJing under secti::m 372 of the -cn:c:- rcccrd :=,f any criminal , •Jre any su_bordinate c,Jurt thE correc~ness legalitj or propriety of any such subordinate court:,. Wh2 t the Republic is question:Lng is the cc Tectnf=SS Ji' 1 th0 order of the trial magistrate t·:, the 2ff ect that apparer,_-1:. all statements of witnesses should b2 made available to accuE persons. Mr. Luena JI learned Statc2' Att:::.rntJY a:t~'pearing for th·' Republic has ari;ued tr1c1t there arc certain cr1ndi tie:ns -,vhich must be c•::,mplied with before stat2ments ;:.,rs ;;;iven To an accui.>:' person. The first ccnditi~n is th3t the ~aker of the state- ment should have teem named ?,s a wi tn.:'.ss ~ s,~Cc)ndly the statcr:::::::::-1-.- to be suppli,:,d ,shc)Uld have 1Y.:::2n m:::dc" under suL••S::ctisn 3 of section lU cf the CP ;'., and 12.stly, that the statemect must ha-ve been made by a pers!n 8gainst whom nr in respect of whom the learned State, A.tT()lTi_e:rs att~mtion that the prosecution is not duty

bound tc ,supp_}_y to an ac:.::-;used person -s.11 statemsnts. He com1;l21ined that the order ot the t:cial m2gistrttte is g0.neral in nature without c:i'.1y spi:::ciJici ty as to v,rhich statements On his part:; Mr. Mv1akasege learned a.dvucate f:=;r th:2' 2nd accused \Cont0n°"d by submitting theit secti::m 9 (3) uf the C-.l?A admits \ of no ambiguity. 3 '':f,he state:nents that are r2quired to be supplied to an accwfod person are those in the memorandum of facts and :recorded in terms of subsection 3 of section 10 of the CPA.-· He .added that an accused person is entitled to such statements to ebable him how to prepare for his defence in advance. In view of these submissions by learned advocates, I now turn to our examination of section 9 of the CPA. It reads as follows~- ii 9 ( 1) Information relating to the coajission of an offence may be given orally or in writing to a police officer or to any person in authority in the locality concerned. (2.) Any information under subsection (1) shall be -recorded in the manner provided in subsection (3) of section 10. ( 3) -tlhere in pursuance of any information 1 given under this section proceedings are instituted in a Magistrate's Court the Magistrate shall, if the person giving the information has been named as a witness cause a copy of the information and of any statement made under sub-section (3) of section to by the p2rson

ai~ainst whom or in respect of whom the accused is alleged to have committed an offence to be furnished to the accused forthwi thi;. Pansing here for a moment subsection (1) of section 9 provides for the reception of information reli\ing to the commission of an offence from any informant :as/it were. It CJ may be given orally or in writing not necassarjly to a police officer but including any other person.in authormty in the area concerned. This information is in my view for the purpose of alerting whoever is involved in the -·a.etection of crime to set in motion the appropriate machinary. The second stage that follows under subsection (2) of section 9 is to have such information recordep. but following a procedure which .., I;,,\• is laid down in sub-sectYon (3) of section 10. I reproduce it hereunder~- •.... /4 = 4 ::: i, 10 ( 3) • Any police officer making an investigation may subject to the other provi- sions of this Part, examine orally any person supposed to be acquinted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined. The whole of the statement inclu- ding any question in clarification asked by the. police officer and the answer to it 1 shall bG recorded in full in Kiswahili or in English or in any other language in which the person ·is examined, and the record shall be shovm or read over to him or

if he does not understand the language in which it is written it shall be interpreted to him in a language he understands and he shall boat liberty to explain or add to his statement. Be shall then sign that statement ' . immediately below the last line of the record of that ,st13:~ement . . . . and; may call up9n. any person in . .·, attendan~e_ -to sJgn as a ;,,rl. tnes~ hfs. signature. to ihe polici officer rec~rding ihe st~ie~~nt' ;~all 1 , ~2penct1)de{o~ each: ~Ja~ef.~n:t ;e:c or'cted :by him the following cer~ifi6~te:~ . • : ',1..•_ : :"~:t .~ a I certify that L . " ' . 't ..• '. • have .fa:ri;l'.1f'ully anct a<:)(U)ratc).y recorcded the statement of the above namea' •• e O _. O ." • o O • e t e O O O ..,,,.a o·. O .. ,, Section lb ( 3) · quoted· ab.ove ·;requfre's p·o1ice of·ficer a making an·investiiati~n to·· follow 'the· qresc:ti tied procedure for the recording o:C :i.nfonrinticn; either und·er ·section 9 or 10 of th~ Criminal' :Proce'dure Act~· .These prescribed procedur2.s 0.) . that ·the oral: iinformation . must: be reduced in, ··writing· qy the ·p.o;lice.i offi_cer . • ·concern.ed;: Cii)' tr;i~t the ihf'orniation so reccirci'ed by the: poli·c~ offic:er must be reaff over'.. '.tc\ ·the· : ·:. informant r . , = 5 = (iii) that such recorded information must be signed by the informant; (IV) that there must be a certificate by the police officer concerned in

the prescribed formant. It is my considered view that statements which are; the subject-matter of sections 9 (3) and 10 (3) of the CPA are statements which would lead or rather eneble th2 police to institute proceedings in a ma 6 istrates court. I do not think that all statements and information received and recor;ded by the police in terms of sections 9 ( 3) and 10 ( 3) need be• acted upon. These sections do not say so.. It is quite conc'i:?i vable that t.qe police may make a decision not to institute ,,int:" proceedings in the meantime or completely she be such: statements. Un my opinion such statements do not fall.. under tl:e ambit of sections 9 (3) and 10 (3) of the CPA. A magistrate is mandaterily enjoined to funish to an accused person: state- rnents- (a) which have been recorded from information received either under section 9 (2) or 10 (3) of the CPA; ai."1d (b) the recorded information pursuant to section.at · riust comply with. the preser'i.bed procedures in ·. ,. section 10(3); and (c) the recorded information pursuant to sections 9 (3) and 10 (3) should result in proceedings being, instituted in a magistrate's court; and (d) the source of this information must be nameq as a witness. This is the first c2tefory of statements which the magistrate has to furnish to an accused person .. The second category of statements mentiorn:?d in section 9 (3) are statements made

under sub9section (3) of section 10 •. These are statements by the person against whom or in respect of whom the accused is alleged to have committed an offenceo o•••••o/6 .. 6 = In my view the second category refers to the victims of the crime whereas the first part refers to informants who are named as witnesses. The ccmmon factor in both instances is -~::~~.t there should be proceedings instituted in a ma~istrates court. There is thus a statutory duty cost upon magistrates to ensure that the provisions of section 9 (3) are fully complied with to the extent explained above. The rationale for this requirement is I think fairly obvious. An accused' pE?rson i;s entitled to know 3nd have a clear picture as to what charges he is facing and the nature of the evidence that will be led against hini~ This will. enable him to prepare his defence arid ' hopefully be able to. utiiiza $Uch statements to test the very foundations of the prosecutioh case~ It is therefore imperative for such st@.tements to be made available to such an accused person. It is not a favour to him but his statutory right wi th:,_:1 the prescribed limits. I end with a ~otation from Damming (as he then was) in the case of Dallison V. Cattery (1965) I QB 369B-C. It is not particularly relevant to the issue at hand, but may be of assistance generally. This is what he said~ ... H The duty of a prosecuting counsel or

solicitor, as I have always \.mdersto ooi it, is this; if he knows of a credible witnGss who C8n speak to material facts which tend ·to show to the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the court the evidence which such witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credibl2 9 he should tell the defence abcut him so that they can call him if they wish 11 o Section 373 (1) @.f the CPA empowers this court acting in revision (a) in the case of a conviction, to exercise any of th..: powers conferred on it as a court of Appeal by Section 366, 362 and 369 of the CPA and to enhence the sentence, and (b) in th~ case of any othE:r order other than an order of acquittal, = 7 = to-· alter or reverse such order. This Ruling falls under section 373 (1) (b). The Ruling of the trial magistrate is altered to the extent indic2ted herein. It is partinent here to quote- section 376 of the CPA. It reads as under~- n 376. When .. a case is revis.ed by a High Court, it shall certify its decision or.orderto the court by which the sentence or order so revised was rec :Jrded or passed, and the court to which 1 ,• the decision c)r order is so certified shall thereupon make such orders as are conformable to the decision certified, and, if necessary, the record shall -be amended in accordance therewi th 11 • My understanding of this section is that the main order J_;:·: the one of this court which I have just deliven:d and the sub,r-• dinate trial court is required to make such orders as are cor:,::' ,:.:· ... mable to this Ruling of the Court. It is accordingly orderecL · NSEI{BLA

JUDGE 29.10.97. Delivered in the presence c,f Mr. Mv1skasege, le3rned Advocate for the 2nd accused and Miss Mkwizu, assj_sted by Mr. Kyarukuk~.

NSEKELA

JUDGE 29.10.97. CERTIFIED TRUE COPY OF THE ORIGINAL.