20190313 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY)

ATMWANZA HC.CRIMINAL APPEAL NO. 303 of 2018 (Appeal emanated from the Judgment of the [)istrict Court ofMisungwi at Misungwl Criminal Case No. 66/20182 The a_p~ellant, S'f~PHANO S/O RICHARD wa.s convicted on his own plea of guilty i~~fuse No. 66 of 2018 in the District Court of Misungwi. On the 1st count, the statement of offence is rape c/s 130(1)(2) (e) and 131 of the Penal Code Cap.16 [R.E 2002], the prosecution alleged that between the !'9th September, 2017 to 03 rd of April, 2018, at Mwajombo Village within Misungwi District in Mwanza Region, the appellant did commit sexual intercourse to one LETICIA D/O JUMA a ·girl aged 17 years without her consent. On the 2nd count . I i ' ., 1 rd the prosecution alleged that between the 19th September, 2017 to 03 of April, 1 20i8, at Mwajonibo Village within Misungwi District in Mwanza Region, the appellant did commit sexual intercourse las a result impregnated one LETICIA l • D/0 JUMA a student of Igokelo secondary school while knowing that its against the law. The trial Magistrate was satisfied that the plea of the app~~ uneqt;livocal and that the facts constitute the offence as charged::------1::1e was~~ictecl!~n his , st I \\'---._~. .I ; ) ~ plea of guilty and on the 1 count the ap~ant wa\\sentenc~~_}-0 30 years '.nipr'.sonment and the 2 nd count the. !pell~t was ~~a to 5 years imprisonment, the sentence to run con9urren~I~

)7 Before me, the appellant ap~~:s:t,Jnrepresented; wt,ereas the . (f A 1 .\-"- ~espondent Republic was reP.resent~tl 0y .· Ms)Yl~regete, learned State Attorney who resisted t h : : a ~ ~ : . . . The appellantlffaSre~'.:\~ounds i1n his memorandum of appeal which can be su~~izJ~ows; One'. the essential ingredients of the charg~~~:~lained to the a~pellant. Two, the plea was equivocal and J~biguous. 'rhr~the contents therein in the charge sheet, facts and that of mitig~ion factdJ collide to a memora~dum of indisputed matters, therefore not safe ~~n it. Four, the trial dourt could proceed to determine the I evidence regardless of the appellant pl~a. Five, the appellant's plea was I ambiguous, imperfect and unfinished in the eye of the law. Six, the appellant . I was not informed the meaning of the plea. Seven, uncertainty whether or not the victim age was 18 years old. 2 (_ ; I When the appellant was called on to say something in connection with the 1 ; grounds ·he prays for this court to adopt his grounds of appeal. Ms. Flyregete generally submitted that the appellant pleaded guilty to the charge. Ms. Flyeregete stated further that since the plea~s ambiguous, he admitted the facts which were read and both the appella~d,the prosecution · signed. Ms. Fleregete continued to submit that ther~ere als~~is~~ and disputed facts both were recorded. The facts m~~ve~fused the appellant. Thus

he understood the displlted ~.and ~ ~ l e a guilty. Ms. Fyeregete submitted further that for tt:iaf'teasoo~~~rts the appeal and since the plea was ambiguou.s she,p1av.s ~~.court:~t0• order retrial to enable the appellant to be tried by the-ttial c~rt. . , 'y" I find it appropriate. ~ave(~~cord and see what .transpired in the District Court. On 12/9~:J.8 w~Jtarge was read over and explained to the appella~as ~~~ plead :there to the appellant pleaded as follows:- . ~~ ~ ' y i l ~ n t l \ 7 true" i 2nd co~t: "It is true" The trial District Resident Magistrate entered a plea of guilty to t~e charge. The appellant furthermore admitted the facts as correct. The original record shows that the trial Magistrate then found · the I appellant guilty and accordingly convicted him as charged. 3 . ' In the record of appeal shows that after the appellant pleaded guilty, the trial, . I . he was convicted on his unequivocal plea of guilty. It is a .trite law that unequivocal plea is not appealable since t~e ·appellant cannot complain about I . the conviction. However, on the other hand, considering the plea as such, the court may find the plea was ambiguous or/that it was taken under mistake or misapprehension and if either of these cirlumstances had/lJeen revealed, the Court may allow on appeal the accused to l!hallenge the ~~ion on a ~~lea of guilty. · ~ From above, the crux of the matter in

thisia~l i s ~ ~ plea of guilty was unequivocal, I need to look at theJocl'Si:Ae-.a~ant ~~eepted as true: . ''l=ACTSO~~ Name and addrc ~~n as on the charge sheet that~}e)N~Je;ember, 2017 to .1"1 of Aprifd0:1.fJ at ~~ime;f:J1y at night hours, accused /~h .\ . '"~'>.. ~ ·1-t,. 1-t, ,t, ~,-1-· i,yas~'-g lnt.erco.arse Wlt.11 a ie Vlu"fm "1410 was a sec~di;1ry!:";dilil2f:;sl::ctent and impregnated her and the , _ac~~\s_arrested and hefein in court the accused \\ )/ i p/eaded1gullty on both two cou. ,ts as charged " COURT: Facts read to the accused and the accused admits they are true. 1 The same was signed by both parties • Accused: sign PP: sign 4 The facts which. were prepared were read over to the appellant, but there is no record which shows that the appellant admitted the facts instead the Court recorded:- "Facts read to the Accused and the accused admits they are true". /' (, //\ ··,. '\, After that, the facts in respect to Memorandum of Undispbt~ct matter's were read over: Age, Tribe, Occupation and residence ar\p"tb_e pro~~b4:tiq_Q_,ind the \'>·-..,.. ··- •. ' ',\ . -. appellant signed. After that procedure, the c~µrt convi~ed tr_e~ppellant on its plea of guilty and sentenced him for thirty ye'~ 1if;()priso~{e'nt., •. l ,,....____-~u ".,.,_'\. \ \\ \ After going through the trial court ~~c:f~ie:i~~b~;~idth~;:he trial court went .,- ';,'\ "-s...., -., ",, into error, the

trial court did ngtrecor<:hthe app,ellant admitting the facts to a commission of the offence([~ t~is /C~"e>t h;ii- noted that there was no compliance in ascertaining w~ether1h~:-pJ~~);{~he appellant was unequivocal. Under the circumstart&~>it '\, • ~;tnQt "-:\___ '-,,.,_, • be f~it)to say the appellant entered a plea of -........"-:--~~../ , f guilty to the C,9rge.::ot: rap~tbat was preferred against him. "·..........-:, / ·< \ '·. \ . '\ \ : '\\. \ Now wh,,,,ereJ~;tQor{i~9tisfiedthat the conviction was based on an equivocal plea ii&t'h·;·'~ct;_sed:'t~.e"½9~rt may order retrial as held in the case of Baraka I '\ "-\ \ \·· / Lazatf\V Republi~ Cr4minal Appeal No. 24 of 2016 CAT Bukoba (unreported) \ -~ ) : and B.D"-ChiReta (a,s he then was) in his book Magistrate Manual stated at page '",-....,,.:_. -~---"""', ,' 31 that: ''·-- " Where a magistrate wrongly holds an ambiguous or equivocal plea or as it is sometimes called an imperfect or unfinished plea/ to amount to a plea ofguilty and so convict the accused thereon on appeal the conviction will almost certainly be quashed and in proper case/ a retrial 5 ,, ' r will be ordered usually before another magistrate of competent ' jurisdiction. // 6