20190226 TZCA Dar es salaam 1

. -~/···· r - . ,.;,·t.. r ... IN THE COURT OF APPEAL O'"""':'.J''·•··NzA·N· ~-'" ,:'\ IA AT DAR ES SALAAM,., ·, (CORAM: MUGASHA, J.A., NDIKA, J.A. And KWARIKO, J.A.) ·' . •- •. , . ,- .. ~ CRIMINALAPPEAL NO. 167 OF 2016 ·O\l'k ..,;:;, t, ·r::i'i\: . '.!·' •~• ,~ \ r 1 .. SIMAITON PATSONI@ TOSHL.:1••····••r••····· ... ~ ................................ APPELLJ.!iNT {App,eal from the decision of the High Court of .., Tanzania at Dar es Salaam) (Mkasimongwa, J.) Dated the 4 th day of May, 2015 in Criminal Appeal No. 158 of 2012 ~c -----------------

JUDGMENT OF THE COURT 19 th & 28 th February, 20i9 KWARIKO, J.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 •,f,: Kiharaka village within Bagamoyo District in Coast Region, the appellant . bad unlawfurcarnal knowledge of . a boy aged five·(s} years (whose name 1 ----- .... ·,·'.tMlifJ;r:}W;t1t!J~!I ,. is withheld) against the order of "rf;(:"i~rre:· . ,., In this judgment, we shall refer tcf"'.:"{:~.·,:.:t.: ··· ., ' the boy as the victim. • ~,ii•, ! . c \ ~ •• •• • • ' ,,,; ~ • Following the appellant's denial of the charge, the prosecution brought a ·Jotal qf four witnesses to prove it. . . ., ·-t··. . .. ~•~ I . ., ~T:h~::e~iience . ~t • - ''I'/, ... by·. the prosecution can be recapfculated hereunder. On 16/1/2011 at about 19:00 hours JOHN GEORGE (PWl) 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. PWl 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 ,I> 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 PWl found him with what looked like ···· spermatozoa in the ' anus, -· thighs ,.... and -- . cloth."· ·Although the appellant . ~- tried to -· .., . -- .. " ,-.~ - _ escape, heA"las apprehended at the scene bY: PV\13. 2 Thereafter, the·~;~t~her was taken to the village chai'rr,Jiri' _;_·who .:;:·. .. .; ., directed th~ same to be report~d to the police station. A PF3 was issued to th~ victim for him to be examined at ho~pita:L One NEEMA MAU\GHI M/\JVJALE · (PW2), A Clinical Officer at M~piitga,;dispensary attended the ~-·!:·;:·- ~-:~~---' -:.~r:1· .... , -·- . " ·• - :"=~·:-- !!_t-:~ ;·:;:f".:J. '~Tr, .,. ;•,. : -~ .:;.:,,~ - ~-- ·;:~~ - --~ . victim. Upon ..examination she found spermatozoa in the victim's anus and ,·. ,-.-;~;:. :ff,:' ._,. ,.;-_,!_,,. ;.·i;,.t- the·'dotn· rie\,vas'\vearing. PW2 filled the PF:fwhich was admitted in court unobjected by the appellant as exhibit Pl. 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 Sa.ld u,nnn in+-orr"gaF1nn the annollant- rlaniorl thoco

allari::itinns 1-'VI I 11 l..'C V I. V I I I jJjJ'--1 I I l. '-''--' 11'--U l. 1'---''-- 11'--~U l.lVI I , 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 rec(_?unted that on the material day at 8:00 a.m was at his ··place of work wateritl9 bricks; VVhtist..there, ·P\Nl and PW2 appeare~ ··-and'···,., . .,inquired from a woman ,Nno was.:,Jetcbing ,water who the employer::,,,J:;s. At,,, .. ,,,:::., 3 night three·.~trfen 'followed him complaining that they·x~:tf~e better placed to :· .,.,,. ~-: , . do the job h~ was doing. They-beat him up until he fell down and people gathered where the- present alleg~tioRs were levelled against him. r,}'{:~'. . . ~/~:_5.~- ...... · r:r.{.t«~· {f·;.·q ·-· -- · - f'}i 11.t,., • ·,,_;. ~ · .• ' ~1~"t .·",1- :~J:t:1 :t ~ ,. At the end ofthe trial th~ appjel{ant was found guilty, convicted ar1d,.~•'":1·;~1' -•/?· -~,-1 ·::_}' 't -:·~ -· .) ,-'\ •. - • . • .. •.• . • 1:. ,· i.>-' . ,. wa·s sentenced to a statutory life imprisonment. ..... ·i,··:;·· .. Upon being aggrieved by that decision the· appellant challenged the n 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 PWl and "pw3 against the appellant was not sufficient.

2. That, there were contradictions between the evidence of PWl and PW3 . . 3. · · That, expert evidence by PW2 was not sufficient. 4 " ... That, the prosecution evidehtfi'lailed to connect the appellant with the offence charged. ·....,.- ·~ 5. That, "the a'ppellant was convicted o'n unjustified': .~) ,-, :,!'t. ,;. ; . . .• ~~•'.:~ __ ; --•. f.' ·_ and unc;:_or:r,~t?orated prosecution evidence. ftl! ~, ~ ~,.:t..~'1' ~!):~ _t~f✓:: '!< • , _ 11·.,., ., "..· ..-_..;._;_:, .f .· ....... -~· 6. That, the ,,·,prosecdtion case was not proved··•·- __..,:.,:-· . •tft').}' 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 · ·· ·subrnissior,~tto that·effect wi 11 be reproduced ·"herein:·' --· 5 The appellant submitted TR/.-/r-espect of the seventh ground of appe·as:;;:<:·· .. · '~ that, the trial court did not comply with the provisions of section 231 of the ,... ·· Criminal Pr9cedure Act [CAP 20 R.E.--2002] (the CPA),, an•irregularity which· ....-·, was not det~cted by the first appellate court. Regard-irr~_th:e eighth ground, ,.;:~,..-: r,._t;,.,;-:t·,~ 1: ,."<f,~,. ., , ,.;;.. . ' ,1.;:re..:o. •·'•;""~-· r.'i~:i.1 ~.-.t}}t-~ ·, ,~. . . he contended. that,, tbe trial court did not conduct a proper:~.voir dire • • ". • ·~ ,.. :~· •. ,1•,:M/ , ~- 7. ~ ·,.,~ • .1,Jil ... ., examinatiorf'lci"''ttie \/1tnm·because the questions he·"was asKea 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 ,.i,...fenr-A Uc;I tA,hir-h omi5sinn 11\...Cf VVI 11\....11 1111 IVI I \i,·,ti::itorl tho nrnroodinnc IU\.'-U 1i..l I\.... t--'I V'--"'--"V I •~-'• I-le imnlorArl thA rn,

I I I ,rt tn '"""""Ii.A•"- I lt,'I '--"--' t "---,._,. .._ ''-' 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 6 In rejoinder .. the,~;1):ipellant complained that, the trial ~6.utt-::,~(new the , · law hence he is not to blame for the omission. He prayed to be released · Jrom prison as-he has· been-there for so ,1or,g. ,,. _:r°i'r:?°·· :rf~; ~-T:·· ... . y·'f}t- ,r~~. •~--- - '"" ..,:::..rs,:, ·/9n our "Part, we will start with the,-lega'I pr,ocedure obtaining after the ,.,,,,:.t - .,.. . - ,,--. • ·,'.,J'- dpse of the prosecution case. Section 231:··of the @PA which is relevant _,;,' ... ,• here provides that; ,. "{1) At the close of the evidence in support of 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 of which, under the provisions of sectiqns 300 to 309 of this Act, he is liable to be convicted the court shall again explain the substaqce of the charge to the accused and inform him of his

right- {a) to ·give "evidence ·wheifier or not on oath·"•-..... -- · .... · · · --··- · · .. · ·· or affirmation, on his own behalf; and , ~I •:·•••1'.',..i•~:r,,\ ,~-; ~ '·• -.~(.', • ;, ~•.";;i)-i;<°',J 7 =.•.•.. ,. - ., and shall then ask the accused person or his •• .i,;,• 11 ,,,_ • c • i:. • ~••• :.'- advocate if it is intended to exercise any of the lft' •s:-·,·~- ,. :,i · j•;;t;::f- . -;'~l'.~ above rights and:i/;~VJ-/.~cord the answer; and the court shall then callQ11·,the fie/Fused person to enter ..·.,; ,·-.... on his defence save where the accused person does not wish to exercise any of 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) If the accuse~ after he has been informed in terms of subsection (lJ 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-Yo give evidence. - ' 8 . .-,·· t,,•l,,."'<\,'• _,, ,... :1 ··•"'>. 1•-··· ..... ,• ~· if~\\~?,;:~ . (4) If the accused perso_,~4;\;~taies that he has witnesses to call but that. they are not present in court, ,and the court is satisfied that the absence .of "' such witnesses is not due to any fault or neglect,Qlf: i,'··,h -· - :~P.,1 .-1,ir!.. • ,_.,.

,!·-· · " .• ;tu. . ·:l.',.V!r . . . ' . the accused personJJnd that there is likelihood that · ' they couia;··1r 'pJesenl/ · give rnaterial evidence 01r ·,., -··- behalf of the accused person/ the court may adjourn the trial and issue process or take other ,!}, steps to compel attendance of such witnesses'~ ( emphasis supplied). Therefore, th..e !aw 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: •• •Pl•,,.~, ., f/.>,,•~1• .... •~ ''"'•'• ~- • .:~.,_,.,,• .:~<jh,W ~·~ .,. •, ••- . ,._\,,,;«•-•,-••--•• 9 . .. • •.;;.;;;.:----:--..=.... ,:-:•~•-· ... ~-· . , t7':~ ,-~;.:-: ~:. ~.; ..., .-,_- ' • .;, - \.r.. ., "07/06/2011: - t-f;r;:,;gH~: .,...!at'.>.:.· ...... ,. :._ ... ~#- .•. .:t"½?.r:,t:!i..· "•.,- Before: ~, ::S.A. Mkasiwa - RM PROS: William - A/ Insp. c,c: Kuiwa ···- ... Aced: Present "· The matter is for ruling. Court: - .. I have satisfied (sic) that the prnsecLftion managed to · ...~,r .,·,• .. :'provide sufficient evidence against the accused person. ThE{ accused ••e•• 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 Aced: Present P. P: I pray for another defence hearing. Order:- Dhg on 4/07/2011

AFRIC Sgd: A.N. Kileo - RM Z1/06/20tr~- --- 4/07/2011 10 Before:,,:;::::'..:"'-S:A. Mkasiwa - RM . ·,:!-{f".Y ;. •·• ,,-~•-•!,• ...,., · ., ' l:·!' ~:;;,_; -~ ·.~'.f .. PROS: ~/ lnsp. CC: Kulwa Mwasimba . Aced:·-· Absent ,n•" .,.. . . P. P: I pray for Dhg date ' ,., Order:- ·"' Dhg on 18/07/2011' }':.-';,:" ~.,pl~-- . ··,r, · . , R/0 to issue ,..,•. -f·<;i :•/i.. Sgd: S. A. Mkasiwa - RM 04/07/2011 18/07/2011 Before: S.A. Mkasiwa - RM PROS: A/ Insp. CC: Tete Yohana Aced: 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 ... ,,.' ,...:.•.~·· "··•'"'··--· •- .,;_ .. ·.,, ;,f', ·- ·. ,. . ;,-,, ..,,,,,... ;,.~.- ,.~:~ . . . . .,._.•,~- ··- '-.,.,.,-. ;.,.,.. ., ., procedural irregularity which denied the appellant his right· to a _fair 11 -~ heariYi{J;~;:This 'is because the appellant was not'"ltJfJitmed of his rights such _: - ' ' as giJing his defence with or without oath or affirmation or the right to remain - silerit and the right to call witnesses on:. his behalf, •, whose preferences ought tb have been -recorded. This omission is fatal becausedt r --' ::';{,'_--,• . .t f •, '\ ~•• ::~, :". 1 _'('\!•• 'i ~ ; "•;. ,:,,. :• .-.,:;... I 1 occasioned injustice to the app'ellant·· who had no legal representation.-J:n ,,_,.,.,., ''"i.:he·case· of BAHATI MAKE.IA v. 'R, Crirnindi Appeal No. 118 of 2006 (unreported), a Fulls-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 overlool<s

to address him/her in accordance withs. 293 of 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 clear to us-that the learnea Judge must have aadressed the accused person in terms of s. 293 of-the CPA·ancf 12 .· -,.:1.- C) If ·,1~··~,,~::•·,.. •;r.:<·· ,.,;,r,. .. , . -:!).\<(< that is why the learned 'ciMfa5cate stood up and said that- the accused person.. is .going to defend himself . . ' on oath. But even if the learned Judge had omitted ... to ck/so;' the accused perspn liad an advocate-who is :pre--su111ed to know the rights of an accused1 ·" · it',··.' ·•:.•·· .''S . ,;_,., . ,:-,., : ·,.·:. . person and that he- . advised the accused person · , --- - • •• -·· • < ,. •· accordingly andhence 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 <I·. 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. • ·i~· ,.,.;. .. • c· .• :r •,, ,, ,. • ' ,. •,•·• , .• ·•' , , , / .• r. ,, •~ " • ,•. ,• ••' • , ·, . ·;. ,., ~ Therefore, the case file is hereby remitted to the trial court to comply - with the provisions ,of section 231 of the -CPA ..This should be done by a· ':·: 13 . • different Magistrate of cohtp~etent jurisdiction. Considering that this·Jn}ittef was ·initi~lly instituted at th~ trial court way back in 2011, we direct the said cour:t to expeqite the finalization of the' case:: In the mear1time, ·the·, appe'1.ant·shall remain in custody. ; ~. t ', -~ • . _-l~[_f~:; . ·}ir~(..? ,.-. .: • ...... ' .:~i- . . .!~J; ·. '. ' . .·· DJ\fED at DAR ES SALAAM this 26th day·of,Februai-yJ;2Q19. 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. ~ J i- S. J. KAINOA

DEPUTY REGISTRAR

COURT OF APPEAL 14