20090915 TZCA Iringa2

,......' j .. ' . .' . .. ' • '.!N 1'1-1~ CCU HT Of APPEAL OF Tl~NZANIA . · AT lf{!.ti_~,. .. . ('CQ.B.Al:~; 15·I{,'ii~rro, J:A.,'LUANDA, ),/\.-, And·ORiYQ, ),/-1..)_ •- r f ,jt • . : . c·rnMIN4L J'~PPEAL Nq: 337 OF 2007 .' ... ,."-

VERSUS . . . . . . .. , ... . . TKE· ~EPUf!LIC : ........ :._.• , ......................... ~•··•·············••"•··•·· RESPONDENT ·- . . (:-\pp_ef?l irom th~ deci~ion otthe High Court of T~n~a,,J., ·. .· · · · .. nt I.rlr,ya) . . · ·. · '. · {Werc.i.:nn.:. j:} · .. ... .' .. ·d~tci tHc~3011~•:!ay of A~cgu!it, ioor ... _: 'in · .PC Criniir:al Atmeal No. 1.3 of 2007 ..' .. - - . - . . .---~------------ . · JlJDGf~ENT.OF Tli.E CQU~T : • 'I • I ., . f • ~ . . . .' ·. ·:. Bcto(e the· D!~;trict Court of Iringa, the appellant, Shani }(tipinga .._r I ,t t . , .... ~-{vat·~ ch;;rg~d; ~ trie·d ana .cdhvicted of A1·med Robbe1.-v conlrar:y. lo ·--- I' .... • • ... ♦ • • •' 4, • .. • • Sections 285 ~nci 287A of ~he Penal_ Coqe; Cap iG~- (R.E. ·2002.j .. He ~ ~- ♦ ~ . ,r . , . r : • .. • • ~ . . was se.nte·n~cd· to t~e··statuto~y- ~O years il'f1prisonment. "His appeal to· .. • # • I • •• i .•. . , . . . the. High ~ourt was· l:JnStJCcessful, hen_ce this: appeal . • • • l I • • • .. ,, .• ·- : : . • I .. it•· . .. . .,. L .. ~ ... I • ... • • , ...... . ., ' . t ' ' . ,..: ..... . ', I •-.· . .. , - ... • In this Court the appellant filed a Memorandum of Appeal with 3 grounds of complHints. He complained against being convicted on . the basis of a retracted cautioned statement. The next complalnt was for being convicted on uncorroborated circumstantial,evidence: . · • : . His third complaint

against the trial r.ourt was for faili~g to evaluate .. . . the· case in its totality. Lastly he prayed for his appeal to be allowetJ._ . . . 1 • :. -~ •.:. · .·• ~- ·At the-hearing. of th.e·appeaf, as was the case in the two lower .. . .; . <mwts .before, the appellant prosecuted his own case. The. resp.ondent · Republic was represented .by .. Mr. Manjoti, learned State Attorney. The appellant, with the lea~ of the ColJrt, presented an '• :• .addit1onal grottnd·of appeal a~the hearing: This time hi~· ~-~pl~lnt: was against.the sentence of 30 years imprisonment impos~d ·ori him. in disregard of hls age of 17 years. On the additional ground ·of appeal the learned State -Attorney disposed it first. He stated that under normal circumstances, the 2 , I ' ,· • . ; senten~e. of 30 years Imprisonment is stat•Jtory. · Me told the Court that. the law on armed .robbery does not prescribe a lesser punishment. .for young offenders who are . above fourteen years of . age._ Regarding the ·remaining grounds of app_eal the responde~t informed the Court that the Republic supports the appeal. The " . 1.ea~(l~d State ,l\ttorn~Y. limit~ .bis submissions. -~o two _points only~·. · . '. ' . . . namely:- (a) • The substituted charge .(q) The cautioned. statement which was repudiated . the learned S~te ln arguing on· the substituted chprge, . . Attorney said ~ that •. when .. the prosecution . case

opened pn .. 6/7/2,.0QS, • • - • • I :' • • , '• • tt1e .• ~mpla~nant, PW!, testified b~fore a new charge was substituted. . .' On the next trial. date, 21/9/2005, the initial charge was· substituted , .• ... ·and replaced with a fresh charge of armed robbery as earlier on · stated. On that date after the charge was submitted, read out to th~ accused person who pleaded not gurlty, the trial court called upon 3 ,, • / . /PW2, Magnus Kibasa to testify. The trial was adjourned severa, ,,it v· times until on 2/01/2006 when PW3, E.q532 D/Sgt Michael, the last prosecution witness testified. After closing the prosecution and '• defence case, the trial court judgment was delivered on 5/7/2006. The learned State Attorney submitted that the trial court proceedings conducted after the. charge was substituted on 21/9/2005 w~r~ . •:..., ~ incurably vitiated for failure to comply with the provislons of -Section 234 (2) (b) of the Criminal I •• Procedure Act, which requires that certain procedures be observed such as recalling of witnesses to testify afresh or for cross examination, etc. With regard to the repud~ated • e::autioned statement. of the · appellant, the learned State Attorney stated that na~ithstanding the denial, the trial court proceeded to admit it. He said that the admission of-the statement was made without conducting _an Inquiry first to establish the truthfulness and the

voluntariness of it. It was . the learned State Attorney's submission that the faflure by the trial court to verify on the status of the cautioned statement was fatal to the proceedings and the same was rendered incurable in terms of '. 4 L - .J 1 - - r, - -- - ("1 - - -- - - -· • _.,:l~r,ctton 388 of the Criminal Procedure Act. In conclusion, the learned ,t?:: . -~,g: ~ . .:r:• 4•_! ....... State Attorney' submitted that in view of the obvious fundamental errors and omissions committed by the trial court in the two areas above, the proceedings were incurably vitiated and a conviction thereon cannot otherwise be sustalned. When the appellant was given an opportunity to rejoin the - respondent's submissions, he told the court that ne ·had nothing ·~ add. The issue for determination before us in thJs appeal is whether in view· of the Republic's submissions the appellant was ac~orded a fair trial in the District Court in view of the glaring legal irregularities committed by the trial court. ·, We shall begin with non compliance with the provlsions of Section 234 of the Criminal Procedure Act, cap 20, [R.E., 2002). The - relevant part is reproduced hereunder:- 5 . / ,,.......~ ..... I. • "234 - (1) Where at any stage of a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration of . the charge either by

way of amendment of the charge or by substitution or addition of a \• , new charge as the court thinks necessary to meet circumstances of the cas~ unless, havlng regard to the merits of the case, the ~equlred amendments cannot be made without injustice, and an amendments made under 'the provisions of this sub-section, shall be made . upon such terms as to the court shall seem just. (2) Subject to sub-section {1), where a charge is altered as aforesafd - • • (a) the court, shall thereupon call upon the accused persons to plead to the altered charge; and - • (b) the accused may demand that the witnesses or any of them be recalled and give th~ir. evidence afresh or be further cross-examined by the accused or his 6 ,.., advocate and, in such last mentioned evenl, the pro~ecution shall have the right to re- examine any such witness on matters arising oul of such further cross-examination.'' ( emphasis supplied) Mr. Manjoti, the learned State Attorney said and we entirely agree vJith hint that the trial court did not comply with the ;:rocetlures set out in section 234 (2) (b) of the Criminal Procedure .- :,ct, ,eproduccd above. According to the record before us, it is obvious that the trial court did not recall PWl who had testified prlor to the substituted charge. Neither Is there any evidence on record that the appefiant was informed of his legal rights under sub-section (2) (b)

above to enable him make an informed decision such as • recalling of PWl to testify afresh or for further cross-examination .. This lead us to another issue which arises from the above and that is whet9er the omission on the part of the trial court to comply with the provisions of Section 234 (2) (b) of the Criminal Procedure Act is a. mere Irregularity or a fundamental one capable of vitiating the proceedings as submitted by Mr. Manjoti. Unfortunately we are 7 j ~ 17 :rPr:rsrrrr ,rsr 1r1 rtttm?ftrznrasrsm 1:er : tmt: :ramz·,w,w,1iire:tetw not able at the moment to come up offhand with a decision of the Court directly on this point; and none has been brought to our altenlio:1. Hm,vever, the learned Samalta, J., as he then was had an occasion to consider tht? effect of failure by a trial court to comply with tr.c provisions of S~ction 234 (2) {b) or the Criminal Procedure Act in the case of R vs JU MANNE MOHAMED f 19861 TLR 231. In similar circumstances, it \vas held that the court is under a duty to inform the accused of his rights and find out from him which rights he proposes to exercise. In addition, the learned Samatta, J., stressed that the accused reply should always be reflected in the record of the case. In the case of JUMANNE, the High Court held that failure to comply with the provisions of Section 234 (2) (b) of the Criminal Procedure Act was a serious

error • capable of vitiating the decision arrived at by the trial magistrate. At page 234 it is stated:- - "The failure on the part of the learned trial magistrate to comply with s. 234 (2) (b) of .. the Act in the instant case was, in my settled opinion, a serious error, capable in law of 8 11 r'I r, _ viUaUng the decision he arriv~d at, at the end of the trial." V..Jc feel duty bound at this juncture to state that the Court is not bound lo follow decisions of lower courts. The decision in tr.e case of JUMANNE has been cited because it is a sound reasoning and we adopt it. - The seccnd Point of submission by the Republic was regarding the caution statement retracted by the appellant and admitted by the trial court. The admission was made without any effort to verify on its voluntariness and truthfulness; whether it was freely made without intimidation, promise, torture, etc. It is common knowledge that voluntariness is the esser,ce of any confession. Under Section 27 (2) of the Evidence Act, Cap 6, [R.E., 2002], the onus of proving that any confession to a police officer was made voluntarily always lies orr the prosecution and the burden never shifts to the accused - See the Court's decision in the case of TWAHA s/o ALI and 5 OTHERS vs R, Dar es Salaam Criminal Appeal No. 78 of 2004 (unreported). 9 ~r: the ir:$lant case, the cautioned statc:mci:-i.~ of ..~hi; app~llant • '. "

• • • •• • • • • •· + -· •• - · ·• t,ff:::c r ·:.::·,o .. conducted . , the investigation . . of the case. . ........ - ' ...... The . . ... t:ourl trial . - n~:cct~:". the r:prc•~lent's .. . . . . . . ... ... . .. . . and pror:,:;c-dect ..objection to admit it in ........... - . .. .. . .. . t:~•-· (;1 ai. t.,:;:,~in-aon:c~ ~·.-i~h ' or. the . prosccutio~ . .. . ... . .. \·~il_n~s~cs.-. And in cross· r::,a!':1:f',i.Uo~ b·,' lhc appellant, P\\'3 stat<;d the fol!owing:- "I -.•,1as just 2~signed to investigate the matter and by that time you .were in th~ lock up. I did interrogate the complainant in this case." It ,s apparent from P\V3's reply above; he impliedly admitted to have composed the cautioned statement from the statements of the prosecution ~itnesses wh9m. he had· already met and _interrog~ted . . when he \vas investigating the case. PW3's mind was already biased agi3inst ~he appellant arter conducting .the investigation of ~e cas~ .. The double roles played by PW3 In the ·case was a fundamental irregularity that resulted into a miscarriage of justice to the appellant. PW3 was not an impartial, objective witness. That is why the trial 10 " (ourt's role to inouire · . tr,to and establish on the truthfulness and vc 1untar~~':?::~ r.r ..,1'., c--u,;o 11 5·t· l ... l, •• c:. ~. . .. a er• 11:m 0~1c:-~ admitting it bccL!rne ,.~c . 'H'l .. r. ·, .. t· . h •.. , • - ,. ' ,..,

·• '3 ivc in l e case under consideration. Thr. ornisr.!on on the part of the trial court was, m our firm \' c~w, a fundamental irregularity which was incurable; and had greatly p:-~iudir.cd the app1:?llant's case as it is cvidcmt from the judgments of both coL:rts be!o'.':, Jn the circumstances, we are constrained to ..- c;scc-unl the caution statement of the appellant, Exhibit "P4''. No,·:: vmat becomes of ttie prosecution case when PW! testimony and the appelJant's caution statement are rejected? Our firm response is that what will be left of the prosecution evidence is insufficient to convk:t. For the foregoing reasons, we find ourselves in full concurrence with the submissions eloquently made before us by Mr. Manjoti, learned State Attorney. We therefore allow this appeal, quash the conviction of armed robbe!'y and set aside the sentence .of 30 years imprisortment imposed on the appellant. 11 Consequently we order lhal the appellant be released·rort.hwith . from tustody unless he ·is olherwise iawfully held.• DATED at IRlNGA this 15°' day of September, 2009. N. P. KlMARO

JUSTICE OF APPEAL ',,. ·, . , . '........ .. B.M.LUANDA

JUSTICE OF APPEAL K. K. ORIYO

JUSTICE OF APPEAL 1 certify that this is a true copy of the original. . .,' .. . ,,. C'i (P.A. LYIMO) . DEPUTY ( EGISTRAR .. . .. ' 12 . .• .' ' . ' , , I 11 r; t"1