20070424 TZHC Bukoba

If\~ THE MIGH COURT OF TANZANIA

AT BUKOBA

APPELLATE JURISDICTION (Be.Mkoba Registry) H/C CRIMINAL APPEALS NOS. 27 & 28 Of 2005 (u\rismra~J from Criminal, Ca!5ie .l'io. 18/2Q08 c;1t Biharamulo Oistrk"t Ccnni)(Be'tor,e::·K~·M.':'Mr:isho, Esq. DM) .,,._____ r --•.·· ·---·· ,_._ •· --APnELLANTS ··.VERSUS ..; ~- '·: ·. ,,, . • '" ""'i . •.• ~ •. • After hearing the appeals· fifed: by the appellants, I was of trie settled mind that the conviction was bad in law:·· I thus quashed their I ordered the appellants to be relea9lXJ from prison fqrt:hwitt1Lurlh?::5S"JhfW are being held in connection l promised to give reasons at a later stage which I l . . - !, In the district court of Biharamulo sitting at Biharamulo, the appellants named above, who are husband and wife (hereinafter nd referred as the 1st and 2 appellants respectively) were charged with unlawful cultivation of cannibas sativa commonly known as bhang. They were convicted as charged. Each was sentenced to pay a fine of Tsh:21 000,000/=; in default to serve a jail term of seven years. The appellants were unable to pay the fines. So, they were sent to prison. The sentences were subject to confirmation by this Court. Aggrieved by the findings of the trial Court, hence the appeals. The appellants . engaged Mr. Muna learned advocate to argue their ' . . ' ,- . ~ appeals. In respect of both appellants, Mr. Muna raised three grounds . . in the.irrespective .. .·

.... ', , . Memorandum . of.Appeal. .. ,: ,· .,.,,. ,., These are:- L That the conyiction of the a.ppellants is bad in law on ! ' . ·: > ! ' •, -~: ', ) .. .' ,: account .. . of. failure. py. the prosecution ' .. ' . to call some of the ' . '. .. : witnesses it·' had named during . . the preliminary . hearing. . . ,. . ,. ; . 2. · Tr1at the learned District Mag_istrate had erred in law by shifting the burden of proof in the case to the appellants.

3. That the decision by the District Court is bad in law as the I , • , , , • • , • , ' •• _ ' : . • • , .: '.'. , ~ , 2 '. . . : . same offends the mandatory provisions of Section 312(1) of the Criminal Procedure Act, Cap.20. Mr. Muna added another ground in respect of the 2nd appellant, namely- That the learned District Magistrate had erred in law by his failure to consider the defence by 2'1d appella~t that her caution statement was extracted by the use of force and/or third degree method. Mr. Ndjike learned State Attorney who appeared for the Republic, supported both the finding and seqtences. . ! The prosecution case is to the following effect:- Following an information received through an informer that the appellants were cultivating bhang in their shamba at Ilyamchele village within Biharamulo District, Assistant Inspector of Police once Charles I , ,, •· • • ' . M ugarula . . .. (PW1) _took. a number of . ' ,· police officers inter alia D/Cpl. ., ' .' Mariam (PV✓2) and went to the place. On arrival they informed the ten cell leader of the area one Maneno Marco anEf a street Chairman Mussa Tinka about their mission to check whether the appellants were ; • • ' ' • • ' .. • • ·• l' cultivating bhang. They then went to the appellants' homestead. They 3 introduced themselves and the reason for going there. The appellants are allegedly to have shown them the shamba. · The

shamba was planted with maize but in the middle they saw bhang. When the 1st appellant was queried he told them that they cultivate the plants to get money. The plants were uprooted. The alleged bhang were then taken to an agricultural officer. The agricultural officer opined that the plant were bhang. The search order, bhang and report made by the Agricultural Officer were produced in court as exhibits by Assistant Inspector Mugarula (PWl) .. . WP . 148~ D/Cpl. ' ' ·, ' Mariam' . ' (PW2) informed .·~, '. ' . the court that the 2nd ' . ,. appeHant 'upon queried gave a caution statement which she confessed to her that the bhang were theirs. She informed the Court that the 2nd appellant gave the statement voluntarily. The statement was tendered in Court despite objection raised by the 2nd appellant that she was beaten. That was the prosecution case. The appellant . 9gai.~_ rep_eated about the torture ordeal she -lr· ' encountered while she ~as under police custody. I will consider the grounds of appeal as listed above. As regards the first ground i.e. failure by the prosecution to call some witnesses named during the preliminary hearing, Mr. Muna • I I said no reason was given. He prayed the Court to draw an adverse inference. He cited Aziz Abdallah v. R /1991 l TLR 7.1... Mr. Ndjike pointed out and rightly so that there is no law which demand all witnesses mentioned during the

conduct of the preliminary hearing should be called and testify. The prosecution are not bound to call all witnesses mentioned therein. The ground is devoid of merit. Turning to the second ground of shifting the burden of proof, Mr. Muna referred to the last paragraph of page 2 of the typed judgment. Mr. Ndjike did not adequately made a reply thereto. He merely said the defence evidence does not raise any doubt. The portion the subject matter of Mr. Muna's attack reads, I quote:- "On the other hand the accused were given an opportunity to call the witnesses for their defence but they did not call any witness to prove that they do not cultivate 'bangi' '~ [Emphasis mine) There is no doubt that the above quoted passage shifted the burden of proof from the prosecution to the defence. That is wrong. Save in very ,· few cases, the burden of proof as in this case always lies with 5 the prosecution. The accused has no burden to prove that he is innocent. It suffices if he raises a reason doubt. So, this ground is meritious. I now turn to the third ground. Mr. Muna contended that the judgment of the trial court was written contrary to Section 312(1) of the Criminal .Procedure Act,- Cap. 20 in that no- issues were framed for determination. Not only that no reason were given. Furthermore, no reason were given why the trial court believed the prosecution case. Last but not least, there

was no evidence to establish the plants uprooted were bhang. Mr. Ndjike countered. He said the format is proper. In reply Mr. Muna reiterated . that Section . 312(1) of the Criminal Procedure Act, . Cap 20 is mandatory. Section 312(1) of the Criminal Procedure Act, Cap. 20 provides:- 3.1.2(.1.} !Every judgment under the provisions . of section· _ . 3.1.1 shall, except as otherwise expressly provided by this Act; be written by, or reduced to writing under the personal direction and superintendence of, the 6 ,- .i.,• · ... · .... -..... .., .,,.. ~ presiding judge or magistrate in the language of the Court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and .ifiha/1 be dated and signed by such presiding officer as of the date on which it is pronounced in Open Court." I have carefully read the judgment of the trial court. Though the learned district magistrate did not expressly stated that the case depend on the question of credibility of witnesses as to whether the appellants were the ones who cultivated the bhang, these issues were fully addressed in the judgment. The trial court was of settled view that the - prosecution case was credible. That satisfy the requirement of the above quoted section: . But that does not mean that the conviction entered by the trial court was correct. I will revert to this aspect at a later stage, suffice to say t,hat the judgment meet the requirement of Section 312(1) of the Criminal Procedure Act, Cap.

20. With regard to the cauti~n statement of the 2nd appellant to have been extracted by force, Mr. Muna submitted that the tendering was not proper as it was not made voluntarily. 7 Mr. Ndjike appear to have said the tendering was proper as there is no law which empowers subordinate court to conduct a trial within a trial. But even in the High Court where a trial within a trial is conducted, it is conducted not as a matter of law; rather it is a matter of practice. And the aim of conducting is to ascertain whether the statement was made; and if made whether it was made voluntarily. This practice appears not to be applicable in subordinate courts. The question is how will a subordinate Court ascertain the voluntariness of such statements, if not by way of conducting a trial within a trial? And if conducted will it cause any harm to the proceedings? Having considered these questions very carefully I am of a settled views that where in a subordinate court the prosecution side wish to tender a caution statement allegedly made . ' . by a suspect voluntarily and . . the same is chailenged by the defence, the court should conduct a trial within a trial as that conducted in the High Court so as to ascertain whether the stat-ement was made; and if made whether it was made voluntarily. In our case the 2:,nd appellant .'' : ' denied to give the statement . voluntarily. So, the court ought

to have conducted a trial with-in a trial to ascertain.whether ?he, made it voluntarily. Since that was not 8 . :- - . .. ,. ,. done, the tendering was not proper. But that is not the end of the matter; the statement was written in a question and answer model. That is not proper either. For a caution statement to be worth a name as provided under Section 58 of the Criminal Procedure Act, Cap. 20 the suspect-should tell his story without being led. What has been conducted in this case was an interview as is provided for under S. 57 of the said Act. In Seko Samwel VR Criminal Appeal No. 7/2003 CAT (Unreported} the Court of Appeal of Tanzania observed, inter alia, I quote:- "... the cautioned statement has another problem. PW3 rrecorded it by putting questions to the appellant who then answered them instead of' leaving her to tell her story without being led. So, in f'act what has all along been taken as a cautioned statement, that is, a staten»ent under section 58 of' the Criminal Procedure Act, is ii; fact a reL"Vrd of interview under section 57. -. '' The initiative in a cautioned statement under Section 58 coniles tirom the suspect and then there is a requirement for the recording officer to ensure that 9 . ' the suspect has been cautioned as required under Section 53(1.} { cJ of' the Criminal Procedure Act." Apart from the irregularities mentioned above which are fatal to

the proceedings, there is a question of evidence as to whether the uprooted plants were bhang. The report of the agricultural officer indicated that the plants were bhang. But that report was produced by Assistant Inspector Mugarula (PWl). Was this witness competent to tender it? The answer is obvious, he was not. He was not the maker. In actua I fact PWl's evidence is hearsay. Section 62(1) (d) of the Law of Evidence, Cap. 6 reads:- .. 62(1) Oral evidence must, in all cases whatever, be direct;,that is to say- {d} if it refers to as opinion or to the grounds on which that opinion is held; it must be the evidence of the person who holds that opinion or, as the case may be, who holds iton thos~ grounds,, In absence of the evidence of the Agricultural Officer, there is no any . . 10 ., . .. . • ·;·. '~..,. 'f ·6ther·~~iqence to establish that the uprooted plants were bhang. .. ' . -In view of the foregoing, hence the release order. • -'1 •'. ~I'\ . . ~ . . . u ~ . fJ .. . • () (. ~ . • ♦ 0 .,,.. . t .. . ()'· . '· ....... ~ ·,, 11 , .. Date: 12/7/~007 · Coram: Hon. D.E. Mrango Appellant } , Respondent . Both Absent B/C: A.M. Bilauri .\. Order: Judgment delivered today the 12 day o_f July, zpb,z. ·in th r absence of.both the Parties. . 1 ... D.E.Mrango DISTRICT REGISTRAR ·.:, .· .. ,, 12/7/2007 A'TBUKOBAI, 12/7/2007 ,,· .' ........ ~•..:.:-.~•le· 12