20160825 TZHC Arusha2

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

ARUSHA DISTRICT REGISTRY

AT ARUSHA CRIMINAL APPEAL NO. 22 OF 2016 (C/f Arusha Resident Magistrates Court Economic Case No. 34 of 2013) VICENT JOSEPH @ WILLIAM ........................................ APPELLANT Versus THE REPUBLIC ■ ■ ■■ ■■ ■ ■ ■ ■ ■ ■ ■ ■ •• ■ ■ ■ ■ •• ■ •• ■■ I ■■■■■ ••••••• ■ ••• ■■• ■■■■■■■ •• RESPONDENT

JUDGEMENT DR. OPIYO, J. Being aggrieved and dissatisfied by the whole of the proceeding, judgment, conviction and sentence passed on the 23 rd day of November, 2015 by Hon. A. K. RWIZILE (SRM), The appellants through their attorney J & J Shirima Associates and Company Advocates lodged ir'1 this Honorable Court a Petition of Appeal containing seven grounds of appeal as follows:- 1. That, the learned trial magistrate erred in law and in fact for failure to note that the prosecution side failed to prove their case beyond reasonable doubt.

2. That, the trial court erred in law and in fact in not finding that the charge sheet against the appellant was defective.

3. That, the trial court erred in law and in fact ~Y convicting and I sentencing the appellants in absence of strong ev.idence to support I conviction.

4. That, the trial court misdirected itself by not considering the evidence I of the appellants herein and consequently ~esulted to great I miscarriage of justice on the side of the appellants~ ' 5. That, the learned trial magistrate erred in law ~nd in fact in not finding that the search conducted at the appellant house was illegal for non-involvement of the appellants in the said s,earch. I 6. That, the learned trial magistrate erred in law a17d in fact in holding I that the charges against the appellants were proved on the required standard. I 7. That, the Hon. Trial magistrate erred in law and in fact in holding ' that the accused defense did not raise any reas~:mable doubt on the I prosecution case." ' In arguing the appeal,advocate Jane Ayo, who repre~ented the appellant ' argued grounds number one, six and seven together, ground number three I and four together and ground number 2 and 5 separately. On grounds I Number 1, 6 and 7 of appeal, she submitted that the question whether it was proved beyond reasonable doubt that the Appellants were found with 2 Seven (7) Impalla Carcasses? To which she says according to exhibit Exhibits Pl and P2, the chain of custody of documents and/or paper trail, showing the seizure, custody, control, transfer was not established. This is because PW2 and PW3 claims to have participated in the arrest of the Appellants and recovery of 7

Impalla Carcasses, two guns, bullets, sports light and motor vehicle which were found in their possession. PW2 and Pw3 did not say to whom he handed it over as the fact that the two guns, bullets, spots light and motor vehicle was not tendered in court. Due to that, it is her considered opinion that the chain of custody of the items allegedly found in the possession of the Appellants was not established. Court of Appeal of Tanzania in the case of TWALIBU OMARY JUMA @ SHIDA Vs. REPUBLIC, Criminal Appeal No.262 OF 2014 (Unreported) at page 15 said; "In this case/ there is a conspicuous absence of a proper account of the chain custody of the silver bracelet (Exh.PJ) and the cell phones (Exh. P4} alleged found in the possession of the Appellant. After these exhibt were seized from the Appellant at KIA or the day latter was arrested, the prosecution side was expected to adduce evidence as whose custody the same exhibits were placed pending the Police investigations and trial In the absence of such evidence/ should we assume that Exh. PJ/ Exh.P4 and other exhibits were placed in the custody of PW2/ an arresting officer or PWJ the investigato'✓ or perhaps the RCO who superintend the appellant's arrest? The 3 I evidence on record does not provide an answer :to this pertinent I I question'. I

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I I I In the Case of ILUMINATUS MKOKA V. REPUBLIC (2003) TLR 245, the Court of Appeal of Tanzania has following pertinent observation:- I ' " In view of those missing links in the instate case, we are of the I I considered opinion that the improper or absence o,f a proper account of the chain of custody of Exhibits PJ and PJ leaves open the possibility of those exhibits being concocted or planted in the houseI I of the appellant" ' ' She argued that, in this case, the prosecution did not le~d any evidence on when, how and where PW2 and PW3 had an od:asion to make a descriptive positive identification of those Exhibits which was alleged to have been found in appellants possession to wit; 7 Impalla Carcasses, two I guns, bullets, sports light and motor vehicle before they were tended by PW1. She strongly submit that before an exhibit is tendered in court, the chain of seizure and custody must be established, hence, the case of prosecution was not proved on the standard required in criminal cases. I She also submittedthatPW2 and PW3 were unreliabl e witnesses and no 1 ' doubt that, if the learned trial Magistrate could have analyzed their I evidence properly as well as that of the rest of the' witnesses, he could have found their evidence to have been untrustworthy. She contended that I I 4 ' per Court record PW1, PW2 and PW3 mixed up date and :time, saying the ' Appellants were

arrested on 17/12/2013 at 1:00pm: and PW4 the ' investigator Police officer testified that he interrogated the Appellants on 17/12/2013 to wit; 1st Appellant at 12:30 pm to 1:45pm and 2nd Appellant at 2:00pm to 3:30pm. The appellants claims that it was cooked up story in order to silence them ' for demanding for the properties that were confiscated from them was enough to raise anyone's eyebrows. That, PW1, PW2 and PW3, did not tell whereabouts of the two guns, bullets, sports light and m·otor vehicle which were allegedly apprehended at the scene of crime. : In view of such unreliable evidence,she said that the appellants' : conviction were unfortunate. Moreover, PW4, a police officer assigned: to investigate the incident, told the trial Court that in the cause of investig~tion, he found the appellants being restrained in the office of KDU officers at Arusha, he did not tell the Court about the Exhibits being alleged to have been found in the possession of the Appellants. ' The learned counsel continued to submit that, it is a trite law in criminal I proceedings that, the burden of proof lies with the p'rosecution side and that the standard of proof is beyond reasonable doubt. ·when the burden of proof shifts to the defence side, the standard of proof is on balance of probability. Thus, where the defence side manages to raise a reasonable doubt as to the commission of the offence they ar~ charged with, then benefit of doubt should be given to the accused pe,rson. In the case of ' 5

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I I I JONAS NKIZE Versus REPUBLIC (1992) TLR 213 at page 214 it was held as follows: - "The general rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting ior ignoring it is I unforgivable and is a peril not worth taking. " ' I Also the case of SAID HEMED Versus REPUBLIC (1987) TLR 117 where it was held that: - " ... in Criminal Cases the standard of proof is Qeyond reasonable doubt. Where onus shifts to the accused it :is on balance of probabilities. " It is therefore, her prayer that, this Court reaches ~ finding that, the ' prosecution side failed to proof their case against the appellants to the ' required standard. This is because, to prove their ca~e, the prosecution side produced four witnesses. Among them beingPW1Who was a patroller I who told the trial court that he do normal patrols and 9ther duties relating to combating poaching. He is the one who come; up with valuation certificate and tendered the same. The certificate was admitted as annex P1 which shows that the appellants were found with :7 impalas valued at 2730 USD (Tshs. 4,381,650.From that she argued thatsince PW1 as the ' patroller has not testified to be at the scene of crim~ on the material day' 6 and since he is not a valuer by professional it was proper for trial court to ' order prosecution

side to bring a proper person so as to produce annexure I Pl and P2. The receipt of the same from incompet¢nt person was irregularity as per the holding in the case of Aziz Abdallah v. Republic (1991) TLR 71 where it was held that:- "(iii) The general and well known rule is that the prosecution is under a prima facie duty to call those witnesses, who from their connection with the transaction in question, are able to testify :on material facts. I If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." Based on that she argues that, since the prosecution sid~ did not bother to call the proper person or by failure to explain how the p~troller was able to act as valuer, and they did not even furnish the good reasons for not calling that witness, who in fact was the material and important witness to ' assist the trial court whether the offence was ever committed, thus adverse I inference could have been drawn by the trial court against the prosecution side. She also submitted thatPW2 and PW3 testified to the fact that they work as game rangers with a duties to supervise tourist whe'n hunting and local I hunting. These two witnesses attested to the fact that they found seven trophies/impalas carcasses in the appellants' car unskinned. Among these ' I 7 I two witnesses, no one attested

to the fact that they saw appellants hunoting I antelopes as the charge sheet reads, even two guns which ,were alleged to be have found in the appellants car there is no any evideqce to prove the same was used to hunt impalas. Thus, such evidence ha~ the new story ' different from that of PW1 which does not show he m~de valuation to I unskinned Impalas. ' I I On the third and fourth ground of appeal she submitted th~t, as neither the trophies nor the motor vehicle alleged to been found in possession of the ' appellant was tendered in court. So, the evidence produced in trial court does not have weight for the court to believe the coo~ed stories of the prosecution side.As far as proceeding of trial court is' concern, no any witness attested and proved to have seen and caught the appellants herein hunting. PW2 and PW3 clearly attested to have fo~nd the appellant I ' I pushing and mending their car which got break down. I ' i ' I ' ' ' On the fifth ground that the learned trial magistrate err~d in law and infact ' in not finding that the search conducted at the appella~t house was illegal for non-involvement of the appellants in the said s~arch, the learned Counsel submitted that,the prosecution side through! PW4 and Exh. P3 given in court showedthat PW4 went for search in the i appellant's house st but this search was conducted without involving the a.ppellant or his

close relatives as required by law. She therefore prayed for the court to be pleased to quash the conviction, set aside the sentence and acquit the ' appellants forthwith. 8 The learned state attorney, RozySule in supported of :conviction and sentence submitted that trading on the evidence of PW2and PW3who was the eye witness, there is no doubt that the Appellants were arrested with the said Government trophies and when they were inspected, were found with weapons which shows that, they hunted the said animals. She also submitted that there is also no dispute that, the said Appellants were found in the Game Controlled Area with the Government trophies without permit of hunting or possessing Government trophies. She further submitted that, since the appellants were not charged with the offence of possessing the said weapons, then the issue of chain of custody relating to those weapons is not material. She insisted t~at it is clear from the evidence that, the said Appellants were arrested with the said animalscarcases and there is no dispute that the recovered weapons were used in the said illegal hunting. And even the description of the said weapons was not vital because the same is not the subject matter to this case. Moreover, she submitted that as long as the evidence of PW4 was not acted upon by the trial court in convicting the appellants, she also did not wish to act upon

it in this regard, rather the proper testimonies of PW2 and PW3 as the eye witnesses who arrested and inspected the said appellants is enough to ground conviction together with that of PWl whodid the valuation of the said trophies. She argued that, since PWl testified to 9 beentrusted with duties of patrols and other duties assigned to him, those other duties are such as preparing the said certificates of valwation as he is experienced and expert in that particular area. If he would not have been the proper person to prepare the same, the said certificate would have been prepared by other people like PW2 and PW3who were at the scene of crime, but because PW2 and PW3were not proper people to prepare the said Certificate, PWlplayed his role as an expert on that parFicular area. Her further submission is that,it is a trite law that the burden to prove that the animal was hunted killed or captured pursuant to, aqd in accordance with the terms of ·a licence issued, permit or authority given under this Actshall lie on the person charged in accordance to the Section 100(1) of the Wildlife conservation Act, Number 5 of 2009. In the ¢ase at hand, the said Appellants did not produce any permit or licence concerning the said hunting or possession of the said animals during the tri,al. Hence in this regard, the prosecution proved its case beyond reaso8able doubts, she argues. In regard to

certificate of seizure she argued that it shows all the things recovered from the Appellants and the said Certificate has been signed by the witnesses and one (1) local habitant, and the said Appellants signed as well. Thus the certificate is proper according to the: Law.She therefore prays for the appeal to be dismissed with costs. 10 In rejoinder, Ms. Ayo still reiterated that the prosecution did 80t prove their case beyond any reasonable doubt. This is because First and foremost, no exhibit such as 7 Impalla Carcasses, two guns, bullets, sports light and motor vehicle which alleged to be found in the appellants ppssession were produced in the trial court by the prosecution side. And the respondent's allegation that the evidence of PW2 and PW3 as eye witness on properties arrested is enough to substantiate that the appellants hunted the said animal is incapable of beingrelied upon as required by law. In this case ' those trophies, car etc. were important in establishing prima facie case against the appellants. She went on to submit that the state attorneys attempt to require ' appellants to prove their innocent is not right as that amounts to shifting burden of proof on the accused person, something which she says is contrary to law. She referred to the case of Christia~ Kale &Another vRepublic (1992) TLR 302where the Court of Appeal of Tanzania held that:- '~n accused ought

not to be convicted on th~ weakness of his defence but on the strength of the prosecution ca~e. " Also the case ofMWITA & 2 OTHERS Versus REPUBLIC(1977) LRT 54 it was held 11 i I 'the appellant's duty was not to prove that their defence were true. They are simply required to raise reasonable doubt in th~ mind of the magistrate and no more. ' Based on the above she still maintained her prayer that the appeal deserves to be allowed. I have dully considered the submission of both sides and painstakingly gone through the trial court records. In disposing the appeal, I will start with grounds number one, six and seven jointly. These; three grounds hinges on the issue of failure to establish chain of custody in proving that the appellants were found in possession of the alleged government trophies, seven (7) Impalla Carcasses. Throughout the entire records, indeed there is no attempt to establish unbroken chain of custody relating to alleged seized trophies. This would entail a documentation or paper trail, showing what was seized and by who, under whose custody the same was kept or under whose control as well as how the same changed hands up to the time of being brought to court or destroyed as per exhibit P2, inventory form. As argued by Ms. Ayo, PW2 and PW3 claims to have participated in the arrest of the Appellants and recovery of 7 Impalla Carcasses, two guns, bullets, sports

light and motor vehicle which were found in their possession, but they never recorded seizure certificate for the same and did not say to whom they handedthem over to, apart from general statement that they handed everything to the KDU team in Arusha. Worse still the alleged two guns, bullets, spots light and motor vehicle was not at 12 • all tendered in court,thus, their existence and whereabouts ,i remains a misery. It is a trite law that the idea behind recording the chain of custody it is stressed is to establishing that the alleged evidence is in fact related to the alleged crime, rather than for instance having been planted fraudulently to make someone appear guilty. See the case of Paulo Maduka& Others v. R, Criminal Appeal No. 110 Of 2007 CATat Dodoma.; According to this case the proper recording of chain of custody requires :that from the moment the thing is seized, it's every transfer from one person to another is documented to prove that nobody else could have accessed it. Therefore, as correctly argued by Ms. Ayo, based in the holding in the case of TwalibuOmaryluma @ Shida. v. Republic(supra)in absence of a proper account of the change ofhands of the alleged impala carcasses allegedly found in the possession of the Appellants after the same were seized,seriously connotes failure by the prosecution i to establish a necessary chain of custody to ground conviction in

such tases.Thus,failure . ' to prove their case beyond reasonable doubt against the ~ppellants. As this ground alone suffices to dispose this appeal, I: need not duel on other grounds, but instantly allow the appeal. I quash' conviction and set aside the sentence meted on the second appellant. /I order immediate release of the second appellant from prison, unless otherwise lawful held. As fist appellant is still at large I make no order in relat_ion to him. 13 I ., • ... OR. M. OPIYO,

JUDGE 25/8/2016