20120912 TZCA Arusha

l ...,·1 IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA (CORAM: KILEO, J.A., MBAROUK, J. A. And MASSATI, J.A.) I CRIMINAL APPEAL NO. 269 OF 2011 SAFARI DEEMAY •••••••••.•••••••••••••••.••••••••••••••••••••••••••••••••.••••• APPELLA.NT i VERSUS THE REPUBLIC •••••••••••••••••••••••••••••.••••• ~ •••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Nyerere, J.) dated the 13th day of July, 2011 in Criminal Appeal No.6 of 2011

JUDGMENT OF THE COURT 11th & 14th September, 2012 KILEO, J. A.: · The appellant Safari Deemay was convicted on his own plea of guilty to rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E. 2002, in the District Court of Babati. He was sentenced to life imprisonment. His appeal to the High Court was dismissed and he has come before us on a second appeal. ' 1 The appellant who appeared before us in person has preferred a three ground memorandum of appeal complaining of ambiguity in his plea, I I misr~presentation by police officer, lack of interpretation and irregularities. I In essence, the complaints boil down to only one main issue for I dete~mination and it is whether the appellant's plea in the trial court was unequivocal. Ms Angela Chacha, learned State Attorney who represented the respondent Republic urged us to dismiss the appeal contending that the

I I I appeUant's plea in the trial court was unequivocal. In support of her arguments the learned State Attorney referred us to Criminal Appeal No. I . 213 of 2009 -Ramadhani Haima v. The Republic and Criminal Appeal I No. :211 of 211 of 2009 - Juma Manjano v. The Republic (both unreported). I Sectipn 360 (1) of the Criminal Procedure Act bars appeals from convictions based on pleas of guilty. The said provision states: . I • "360. No appeal on a plea of guilty (1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted 2 on such plea by a subordinate ·court except as to the extent OI'.' legality of the sentence." The above is the general rule. We are however mindful of the fact that under certain circumstances, an appeal may be entertained notwithstanding a plea of guilty. Laurence Mpinga v. The Republic (1983) TLR 166 which was cited by this Court in Ramadhani Haima v. l Republic - Criminal appeal No. 213 of 2009 (unreported) lists down those I circumstances which are: I 1. that, even taking into consideration the admitted fact~ his plea was imperfect, ambiguous or unfinished and, for that reason the lower court erred in law in treating it as a plea ofguilty; 2. that he pleaded guilty as a result of mistake or misapprehension; 3. that the charge laid at his door disclosed no offence known to , law; and 4. that upon the

admitted facts he could not in law have been convicted of the offence charged 3 We think it is desirable, at this juncture, to reproduce the appellant's plea in the trial court. After the charge was read over and explained to him he is recorded as having said: ''It is true. " The charge that was read over to him reads thus: I i '!STATEMENT OF THE OFFENCE: Rape c/o 130 (1) (2) and 131 (1) of_the Penal Code Cap 16 Vol. 1 of the laws Revised edition 2002. PARTICULARS OF THE OFFENCE: That Safari Deemay is charged 1st day of November, 2010 at about 17.00 hrs at Qameyu Village within Babati District Manyara Region did unlawfully have carnal knowledge of one Atenesia d/o Clemence a child of 8 years." After he had said it was true to the above charge and particulars, the trial magistrate made the following statement: "FACTS: Admitted are on para 1, 2, 3, 4, 5 6 and 7" Thereafter the following memorandum of facts was read over to the appellant: 4 ''MEMORANDUM OF FACTS .' 1. That the name and address of the accused are as on the charge i..) sheet 2. That on 01/11/201 Oat 17. 00 hrs. the accused found one Atenesia Clemence who was coming back from school and the accused held the victim by hand and told her that he wanted to send her to Mwalimu Theophil to bring him a letter for the accused had lost his relatives.

3. That the accused took the victim with her fellow and laid her down and told her that he is a local militia of Qameyu so the victim was .to take off her underwear as a punishment for escaping school.

4. That after taking off the underwear of the victim Atenesia he inserted his penis into the vagina of the victim while telling her to close her eyes.

5. That the proceeded to do the same to the victims fellow pupil.

6. That then the accused inserted his penis into anus of the victim Atenesia.

7. That the accused than left the victim laying there and he went away." In response to the facts as were read over to him. the appellant stated: ''I admit that all the facts read out are true. " The question before us is whether in the light of above scenario it can be said that the appellant's plea was unequivocal. I 5 This Court, in Criminal Appeal No. 103 of 2005 between Khalid Athumani v. the Republic (unreported) cited Adan v. Republic (1973) I E.A. f45 at page 446 where the procedure was explained thus: I I "When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with 6 the statement of facts or asserts additional facts which, if true, might raise a question as to his

guilt, the magistrate should record a change of plea to ''not guilty" and proceed to hold a trial If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence................ " In the above case, the trial court had convicted the appellant on his own plea of guilty to the charge of stock theft. His plea was recorded in the follo!ing words: "It is true I stole that bull It was in the boma with others and I stole it I was arrested with it " In considering the appeal which the then East African Court of Appeal ultimately allowed, the following observation was made by the Court: "The courts have always been concerned that an accused person should not be convicted on his own plea unless it was certain that he really understood the charge and had no defence to it The danger of 7 a conviction on an equivocal plea is obviously • I greatest where the accused is unrepresente~ is of 0 • limited education and does not speak the language of the court. ...... " The Court went on to say that, the word "guilty" is to be treated with greatest caution. We entirely agree. Great caution must be exercised especially where an accused is faced with a grave offence like the one at I hand which attracted life imprisonment. We are also of the settled view that it would be more ideal for an

appellant who has pleaded guilty to say more than just, "it is true." A trial court should ask an accused to I I elaborate, in his own words as to what he is saying "is true". Ramadhani Haima v. The Republic (supra) cited by the learned State Attorney is I distinguishable from the present case in that case the appellant after the charge was read to him said: ! ''It is true I did commit the unnatural offence, I did carnal knowledge to one Kiku s/o Lobuwac!y boy of 10 years." In response to the facts presented by the prosecution he said: " ...... .I do agree before this court that all the facts narrated by the learned PP are correct. I did 8 carnally know one Eluk s/o Lobuwack against nature.... .I will never commit any offence any more. This court should be lenient to me. " The plea in Khalid Athumani (supra) which was found to be unequivocal was to the following effect: ''I admit the charge that it is true that I raped the complainant Rabia d/o Mau/id without her consent " The appellants' pleas in the above cases were more than the mere words, ''It is true. "They went further to elaborate as to what they were saying "was true'~ l l ! We have noted further in the present case that the learned magistrate ( even before the appellant had been asked for his response on the "memorandum of facts'') recorded that the "admitted facts are on para 1, 2, 3,4,5,6 an9 7." We ask ourselves;

how could the learned magistrate recorid admitted facts before the facts had been read out to the appellant? Further still, the age of the victim which was a material element in the charge the appellant was facing was not mentioned in the memorandum of l 9 facts. We are also of the settled view that in a case like the one at hand a medical report like a PF3 would be a vital document to form part of the facts so as to satisfy a trial court that the plea of an accused is indeed an unequivocal one. l All said and done, we are of the settled mind that the appellant's plea in the trial court was not unequivocal. For this reason, we allow the appeal. I . ' We quash and set aside all the proceedings, conviction and sentence in the l! High· Court and the trial court and order that the matter be remitted to the trial fourt for a de nova trial starting from the stage of taking the plea. We order accordingly. I Dated at Arusha this 1th Day of September 2012. E. A. KILEO

JUSTICE OF APPEAL M.S. MBAROUK

JUSTICE OF APPEAL S. A. MASSATI

JUSTICE OF APPEAL 10 I certify that this is a true copy 11