simaiton patsoni toshi vs republic 2019 tzca 605 28 february 2019

IN THE COjtlRTOF APPEAL OF TANZANIA An PAR ES SALAAM (CORAM: MUGASHA, J.A., NDIKA, 3.A. And KWARIKO, J.A.) CRIMINAL APPEAL NO. 167 OF 2016 SIMAITON PATSONI® TOSHI.............................. ...................... . APPELLANT

VERSUS THE R ................................................... ..................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mkasimonqwa, 3.^ Dated the 4th day of May, 2015 in Criminal Appeal No. 158 of 2012

JUDGMENT OF THE COURT 19th & 28lh February, 2019 KWARIKO, 3.A.: Originally, the,appellant stood before the District Court of Bagamoyo being charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [CAP 16 R.E. 2002]. It was alleged by the prosecution that on the 16th day of January, 2011 at about 19:00 hours at Kiharaka village within Bagamoyo District in Coast Region, the appellant had unlawful carnal knowledge of a'boy'aged five (5) years (whose name is withheld) against the order of nature. In this judgment.:"'we shall refer to the boy as the victim. Following the appellant's denial of the charge, the prosecution brought a total of four witnesses to prove it. The evidence by the prosecution can be recapitulated hereunder. On 16/1/2011 at about 19:00 hours JOHN GEORGE (PW1) was at home when he learnt from his wife one Naomi Samuel that their son (the victim) was missing. Upon inquiry, another son Arnold informed them that the victim had been taken away by a certain man whom they identified to be the appellant. PW1 mobilized other people including AMOS MALOGO (PW3). When they got at the appellant's house, they detected some movements from inside. They broke down the door, entered into the house and found the appellant in the sitting room heavily sweating with the zip of his trousers open. In the bedroom the victim was found lying on a mat, naked

and facing down. Upon inspection PW1 found him with what looked like spermatozoa in the anus/thighs and cloth. Although the appellant tried to escape, he was apprehended at the scene by PW3. .Thereafter, the matter was taken lc>rfche village chairman who directed the same to be reported to the police station. A PF3 was issued to the victim for him to be examined at hospital- One NEEMA MALACHI MAJWALE (PW2), A Clinical Officer at Mapinga dispensary attended the victim. Upon examination she found spermatozoa in the victim's anus and me cioth he was wearing, m z rmea L’ne PF3 which was admitted in court unobjected by the appellant as exhibit PI. No D 7325 D/Corporal JAMES (PW4) was the investigator of this case. He testified that the victim told him that, it was the appellant who sexually assaulted him on promise of being given money. Further, PW4 said upon interrogation the appellant denied these allegations. At the close of the prosecution case the trial Court ruled that a case had been made out against the appellant sufficiently to require him to give his defence. The appellant who was the sole witness for the defence denied the allegations. He recounted that on the material day at 8:00 a.m was at his place of work- 'watering bucks. Whilst there/ PV7T' and' PW2’ appeared and inquired from a woman who was fetching water,™'ho the employer was. At night three men followed him

combining that they were better placed to do the job he was doing. They beat him up until he fell down and people gathered where the present allegations were levelled against him. At the end cf the trial the appellant was found guilty,’convicted and was sentenced to a statutory life imprisonment. Upon being aggrieved by that decision the appellant challenged the conviction and the sentence before the High Court but was not successful. Therefore, the appellant has come before this Court on a second appeal. In his petition of appeal the appellant raised six grounds. Also, with leave of the Court he raised two additional grounds of appeal on points of law. The total eight grounds of appeal can be summarized as follows: - 1. That the evidence of visual identification by PW1 and *PW3 against the appellant was not sufficient.

2. That, there were contradictions between the evidence of PW1 and PW3.

3. That, expert evidence by PW2 was not sufficient.

4. That, tlif>;orosecution evidence failed to connect the appellant with the offence charged.

5. That, the appeiiant was convicted on unjustified and uncorroborated prosecutipi?,evidence., 6. That, the prosecution case WdS not proved beyond reasonable doubt against the appellant.

7. That, the trial court did not comply with the provisions of section 231 of the Criminal Procedure Act [CAP 20 R.E. 2002] 8. That, the voire dire examination was not conducted according to law. When the appeal came up for hearing, the appellant appeared in person unrepresented, whilst Mr. Ramadhan Kalinga, learned State Attorney appeared for the respondent Republic. The appeal was duly heard. However, because in his additional grounds of appeal, the appellant raised legal points, which in practice ought to be decided first, only the submissions to that effect win be reproduced herein. The appellant submitted in respect of the sever^: ground of appeal that, the trial court did not comply with the provisions of section 231 of the Criminal Procedure Act [CAP 20 R.E.-2002] (the CPA), an irregularity which was not detected by the first appellate court. Regarding the eighth ground;:, he contended that, the trial court did not' conduct a proper voir dire examination' to the victim because the questions he was asked were not shown. On his part, Mr. Kalinga concurred that, the trial court did not address the appellant in terms of section 231 of the CPA. He argued that, because the appellant was not represented, he was not accorded his right to defence, which omission vitiated the proceedings. He implored the Court to nullify the proceedings from the stage the omission was committed up

to the decision of the High Court. The learned counsel prayed the case file to be remitted to the trial court for the omission to be cured. Responding to the eighth ground of appeal the learned State Attorney argued that, the trial court correctly found the victim incapable of giving evidence. In rejoinder the appellant complaine^'nat, the trial court knew the law hence he is not to blame for the omission. He prayed to be released from.prison as he has been there for so long. On our part, we will ctart with the legal procedure obtaining 3ftor the close of the prosecution-case.’ Section 231 of the CPA which is relevant here provides that; "(1) At the dose o f the evidence in support o f the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence o f which, under the provisions o f sections 300 to 309 o f this Act, he is liable to be convicted the court shall again explain the substance o f the charge to the accused and inform him of his right- (a) to give evidence whether or not on oath or affirmation on his own behalf; and (b) to call witne™, in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any o f the above rights and shall record the answsrpyand the court sfialf

then call on the accused person'to enter< on his defence save where the accused person does not wish to exercise any o f those rights. (2) Notwithstanding that an accused person elects to give evidence not on oath or affirmation, he shall be subject to cross-examination by the prosecution. (3) I f the accused\ after he has been informed in terms o f subsection (1), elects to remain silent the court shall be entitled to draw an adverse inference against him and the court as well as the prosecution shall be permitted to comment on the failure by the accused to give evidence. (4) If::n;p accused person states that he hu- witnesses to call but that they are not present in court, ana the court is satisfied that the absence oi such witnesses is not due to any fault or neglect o f the accused person and that there is likelihood that they Cuuld, if present, Qive rriaCaiai evidence on behalf o f the accused person; the court may adjourn the trial and issue process or take other steps to compel attendance o f such witnesses'\ (emphasis supplied). Therefore, th£ law is clear that, if at the close of the prosecution case the court is satisfied that a case has sufficiently been made against the accused, it shall explain to him/her their right of defence as shown therein. In the instant case, the record shows that after the court had ruled that a case had been made against the appellant, it

did not explain to him the right of defence as required in law. The court directly asked the appellant to give his defence. The trial court record is let to speak thus: 07/06/2011: before: •• S.A. Mkasiwa - RM PROS: William - A/ Insp. CC: Kulwa Accd: Present P. P: The matter is for ruling. Court: - I have satisfied (sic) that the prosecution managed to provide sufficient evidence'against tne accused person. The accused has got the (sic) case to answer. Sgd: S. A. Mkasiwa - RM 07/06/2011 Order:- Dhg on 21/06/2011

AFRIC Sgd: S. A. Mkasiwa - RM 07/06/2011 21/06/2011: Before: A.N. Kileo-RM PROS: William - A/ Insp. CC: Kulwa Mwasimba Accd: Present P. P: I pray for another defence hearing Order:- Dhg on 4/07/2011

AFRIC Sgd: A.N. Kileo - RM 21/06/2011 4/07/2011 10 Before: S.A. Mkasiwa - RM PROS: A/Insp. CC: Kulwa Mwasimba At-cd:“ Absent P. P: I pray for Dhg date Order:- D: ,g on 18/07/2011 R/O to issue Sgd: S. A. Mkasiwa 04/07/2011 18/07/2011 Before: S.A. Mkasiwa - RM PROS: A/Insp. CC: Tete Yohana Accd: Present P. P: The matter is for Dhg Order:- Dhg on 1/08/2011

ARIC Sgd: S. A. Mkasiwa - RM 18/07/2011" Following the several adjournments, the appellant gave his defence on 01/8/ 2011. It is our considered view that, the omission was a fundamental procedural irregularity which denied the'appellant his rigm. lO a fair 11 hearing. This is because the nopeiiant was not informed of his rights as giving his defence with or without oath or affirmation or the right to remain silent and the right to rail witnesses on his behalf, whose preferences ought to have been recorded. This onissicn is fatal because it occasioned injustice to the appellant who had no legal representation. In the case 01 BAHAiT m AKEj A v . R, Criminal Appeal Nu. ±13 of 2006 (unreported), a Full-Bench of this Court interpreted section 293 (2) of the CPA which is applicable in the criminal trials before the High Court but similar to section 231 of the CPA. The Court first considered whether non- compliance with th^t provision occasions injustice to the accused and it said thus; "It is our decided opinion that where an accused is represented by an advocate then if a judge overlooks to address him/her in accordance with s. 293 o f the CPA the paramount factor is whether or not injustice has been occasioned" The Court went on to decide as follows: "In the» current matter there was no injustice occasioned in any way at all. It is palpably dear to us that the learned Judge must

have addressed the accused person in terms of s. 293 o f the CPA and 12 that is^my the learned advocate stood up and that the accused person is going to defend himself on oath. But even if the learned judge had omitted to do so, the accused person had an advocate who' is presumed to know tha-. rights o f an accused person and that he advised the accused person accordingly and hence his reply". Now, because in the instant case the omission occasioned injustice to the appellant, it is our decided opinion that it vitiated the trial court's proceedings after the court ruled that a case had been made out against him. As rightly prayed by the learned State Attorney those proceedings are nullified. As a consequence, we quash and set aside the conviction and sentence imposed on the appellant. The appeal proceedings before the High Court are also nullified as they lack legs upon which to stand as they originated from the nullified proceedings of the trial court. Having nullified the proceedings of the lower courts this Court is in agreement with the learned State Attorney that, this is a fit case to be remitted to the trial court for it to comply with the law. Therefore, the case file is hereby remitted to the trial court to comply with the provisions.or section 231 of the CPA. This should be done by d 13 differs ^Magistrate of competent jurisdiction. Ci-wrdering that this matter was initially instituted at the trial court way back in 2011, we direct the said court to expedite the finalization of the case. In the meantime, the appellant shall remain in custsdy/- DATED at DAR ES SALAAM this 26th day of February, 2019. S. E. A. MUGASHA

JUSTICE OF APPEAL G. A. M. NDIKA

JUSTICE OF APPEAL M. A. KWARIKO

JUSTICE OF APPEAL I certify that this is a true copy of the original. < {V\Aaaaammmc$* S. J. KA1NDA ”

DEPUTY REGISTRAR

COURT OF APPEAL 14