20160630 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA CRIMINAL APPEAL NO. 44 OF 2016 (Originating from Rm's court of Arusha at Arusha Economic Case No.37/2014) SUNDAY PETER@ MASSAWE .,.. ........................ APPELLANT VERSUS THE REPUBLIC ............................................. RESPONDENT JUDGMENT Date of last Order: 10/06/2016 Date of Judgment: 30/06/2016 BEFORE: S.C. MOSHI, JUDGE The appellant was arraigned before the Resident Magistrate's Court of Arusha for the offence of unlawful possession of Government Trophy; Contrary to Section 86(1) and 2(b) of the Wildlife Conservation Act, No.5 of 2009 read together with Section 57(1) and paragraph 14(d) of the 1st schedule to the Economic and Organised Crimes Control Act [Cap.200 R.E.2002]. The app~llant was charged with another accused person who was found not guilty and he was acqui~ed. The Court found the appellant guilty as charged. Hence, he was convicted and sentenced to twenty years term of imprisonment. · 1 The appellant was not satisfied. Hence, he preferred the present appeal. The petition of appeal contained six (6) points as follows:- 1. That, the learned trial Magistrate erred in law and infact by convicting the appellant without first assessing the credibility of the prosecution witnesses who appeared before her. 2. That, the learned trial magistrate erred in law and infact when she failed miserably to scrutinize the evidence of PW.1 and PW.4 and hence she arrived on an erroneous decision. 3. That, the learned trial Magisrate erred in law and infact when she failed to scrutinize the cautionary statement exhibit P.5 according to the law or standard set by the law. 4. That, the purported stated of the appellant was taken contrary to the law and procedure. 5. That the learned trial Magistrate erred in law and misdirected herself by failure to accord due weight to the appellant's defence and decided the matter basing on the prosecution case its own. 6. That, the prosecution did not prove their case beyond reasonable doubt as required by the law. At the hearing of the appeal the appellant appeared in person whereas the Mr. Diaz Makule, S/A appeared for the respondent, the Republic. The appellant stated among other things thus, the trial magistrate failed to analyse the evidence of prosecution. It was weak. Pw's evidence, Raymond Charles claimed that after seeing the elephant ivory tusks he filled in the form, the Manager signed and he also 2 signed. He didn't say which Form was filled and signed as there are many types of Forms. Also didn't tender a search warrant as exhibit. To prove that they searched him and found him with the said ivory tusks. His evidence is not supported by the evidence PW4, the guest house Manager. PW4 stated that there was a form which was filled by the Manager as their witness. This is a clear contradiction. PW4 didn't say that he signed the form. PW4 failed to prove that he was his .customer, that he rented a room at Maru Inn guest House. He didn't bring a guests' Register. The Book/register would have shown his name, room number and the things he possessed. If the magistrate had properly analyzed the evidence would have found that the evidence was total lie. The caution statement was no recorded in accordance with the law. He was arrested on 12/7/2014 and on 14/7/2014 he was made to sign the statement which he didn't know. The caution statement was out of the required time. The statement was supposed to be recorded within 4(four) hours of his arrest. The statement was received by court, the statement was not read in court. The court ought to have read our loudly the statement. He informed the magistrate that he was not given his basic 3 right to call a witness when signing the statement. So the court ought to have made an inquiry to consider the legality of the statement. The court did not consider his defense. He explained how he was arrested and how he was beaten up and being hooked to a case which he did not commit. The State Attorney responded as follows; concerning the evidence. The appellant was arrested at the scene. The prosecution called witnesses. Pwl Raymond Charles stated that the appellant went to crime scene with ivory tusks. The appellant went there as a visitor to a guest who rented the room. So, there was no need of registering him. It was a trap which was set up. That's why it was easy to get him. Regarding the Form which was filled by the Manager of the Guest House; the record is clear that the Form was tendered in court and the appellant didn't object its admission it (it was Exh P.1 collectively), contesting it now is an afterthought. Regarding the contradiction between PWl and PW4, the State Attorney said that, PW4 at page 22 at 6th and ih line from top, said that they do not register the person who visits a guest, they record those who rent the room. The whole evidence shows that he was arrested on sport after being tracked. He was trading on the trophy. The trap was done by wildlife 4 management officer. The appellant confessed to have been trading on the trophy. That he had 2kgs which valued at Tshs.90,000/=. The appellant didn't request the caution statement to be read, he objected for different reasons. He said that he was no allowed to call a witness. There's evidence that he said he wouldn't call a witness so the police officer taking the statement was justified to proceed. Submitting regarding time of recording the caution statement, Mr. Makule said that, the records do not show the time. The accused should have raised the issue of time during the trial. Also, Mr. Makule urged that, here was no need to consider the defense as the appellant was arrested at the spot. He confessed. I have considered both sides' submissions. I have decided not to consider the merits of the case in view of ground No.5 The appellant urged that the defense evidence was not accorded any weight, the defense evidence is supposed to cast doubt on the prosecution's evidence. I have gone through the judgment; it is obvious that the magistrate did not consider the defense evidence at all. Failure to consider the defense is a material irregularity which is fatal. 5 ( ,-. In consequence, I will not consider the merits of the appeal; I quash the judgement and I further order that, the case file be remitted to the trial court and a fresh judgement should be composed by another Magistrate with competent jurisdiction. Appeal is granted to the shown extent. Right of Appeal is explained. s.c.£. JUDGE 30/06/2016 6