republic vs william sikazwe 1977 tzhc 5 6 may 1977

IF THE HIGF COURT OF TANZANIA •• AT T A E 50R A MISCF-LLANEOUS CRIMINAL CAUSE NO. 40 OF 1 975 In the matter of an a p p lica tion for

LEAVE TO APPEAL OUT OF TIME and In the matter o f Criminal Case No. 26 of 1975 in the D is tr ic t Cdiurt of Mpanda B is t r ie t at Mpanda.

TEE REPUBLIC versus

WILLIAM SIEAZWB

JUDGEMENT KIMICKA, J . - This i s an appeal against conviction and sentence. The appellant in th is case V illiam Sikawe was convicted, with another person, whose appeal was allowed by the Inbora High Court vide crim inal Appeal No, 85 o f 1975, of office- breaking and s te a lin g sh s. 4 6 0 /- . The Tabora High Court judgement which allowed the a p p e lla n t's co-accused in the lower court is reproduced below fo r easjr referen ce.

JUDGEMENT "The appellant SALAVATORY S /0 BARABARA was convicted of o f f i c e breaking, contrary to Section 296(1) of the Penal Code. Another accused W illiam s /o Sikazwe who was trie d jo in t ly with him was a lso convicted and has, a p p a re n t^ , not appealed. Thej' were referred to as the f i r s t and second accused re sp e c tiv e ly and I w ill continue c a llin g them so in th is judgment. The p a rticu lars o f the offence rec ited that on 2 8 /1 2 /7 4 a t about 1 7 .3 0 hours, f t Mpanda, the two accused persons broke into the o f f ic e o f the Mbeya Region Co-operative Union whence they s to le casiv sh s. 4 6 0 /- , the property of the said Union. Both pleaded ’ Not G u ilty 1' to the charge. The prosecution ! s case established and there was no dispute that the o f f ic c was in fa c t broken in to and the money which belonged to the Union stolen during the night in question. At that tin e the f i r s t accused and the second accused were in employ of the Union at that o f f ic c as cashier and watchman r e sp e c tiv e ly . I t was also ihot in dispute that the o f f once wac committed when the second accused was on duty or supposed to be on duty at the o f f i c e . There were three pieces of evidence against the f i r s t accused. The f i r s t was an a lle g a tio n th a t‘ he had been absent from duty from 2 4 /1 2 /7 4 to 3 0 /1 2 /7 4 , during

which period the offence took p lace. Very obviously, th is by i t s e l f was too weak to connect him with the crime. And in any case, the accused who admitted that he was absent during that period, gave an explanation in that regard, which explanation was f u lly backed up by P .V .2 Klim bila who was inchaxge o f the o f f i c e . It was simply that there was no work fo r him to do at that time and he did not see a*y sense in going to the o ffic e . Indeed, the learned M agistrate found that explanation reasonal l e . The second piece o f evidence was that on 2 8 /1 2 /7 4 during the afternoon, the f i r s t accused had gone to the house o f P .V .2 and asked fo r a salary advance. P .:, .2 told him that the money was in the o f f ic e and promised that he would lend him the amount he needed on the follow ing day. In substance, the f i r s t accused did not deny that account and, needless to observe, that fa c t alone could not b^-ve implicated him in the o ffen ce. The third piece was a statement to D etective Sergeant David (P.\7.1 ) by the sccond accused in which he f u l ly implicated him. According to both P.V .1 and P .V .2 , the second accused f i r s t denied any knowledge o f the c u lp r it and that i t was only when he was givin g a statement to the P olice in w ritin g , that he started to im plicate the f i r s t accused. B ut, in e f f e c t , the second

accused retracted that statement uh.cn he gave evidence on oath at his t r i a l . He claimed that what he wrote a t the P olice Station was what was d ictated to him by the P o lic e . The learned t r i a l M agistrate hole that the statement of the second accused to the P olice was true and that the fa c t that the f i r s t accused was at the m aterial time in great need of money f o r t if ie d him in that b e l i e f . He concluded h is judgment in the follow in g term s: "There have been a l l evidence that .there was money received by P .V .2 . There is agreement that P .V .2 and f i r s t accused agreed to meet on 2 9 /1 2 /7 4 so that the f i r s t a,ccused could be advanced the money. So the f i r s t accused a ft e r knowing that the money was in the drawer, o f P .V .2 , he went and conspired with the second accused and s t o le i t . The second accused was not an accused v?hen he revealed what happened (which is d eb atab le). I f e e l that there is enough circum stantial evidence to make this court s a fe ly act on i t . I b eliev e that the accuseds had conspired and broke the o f f .ice and stole- none 7 as alleged . . . . ......... I convict both accused as ch a rg ed /’' The appeal is mainly on the follow ing four 'rounds (with su ita b le a lt e r a t io n s ) : M( 1) '(.‘hat i f r e a lly the sccond accused! saw no enter the o f f ic e through the window,

why did he not take any step to .apprehend no; (2 ) That i f the second accused saw ne breaking into the o f f i c e , why did he not say so at the f i r s t instance when he was questioned about i t ; (3 ) That i f what the second related to the Police at the P olice fta t io n was true, why did he not r e ­ peat i t in court throughout the t r i a l ; and ( 4 ) That the fa c t that I had approached P.VI.2 fo r noncy could not have established the offence against me beyond reasonable d o u b t". I nust say at once that there is considerable merit in each o f these arguments. I t is c le r tha.t the learned. M agistrate based the conviction p rin cip a lly on the statement o f the second accused at the P olice s ta tio n . That statem ent, as the learned Magistrate found, c o n flicte d with what he had e a r lie r told the P olice in m aterial p a rtic u la rs, and as e a r lie r remarked, i t was a c tu a lly retracted by the second accused L'hen he gave evidence in court. Let alone that the repeated in con sisten cies were a ref].ection on h is c r e d ib ilit y , the fa c t that he was, in the circunstanccs of t h is case, n atu rally the f i r s t prime suspect, introduced a big element in h is motivation fo r s h iftin g the blame f o r the offence on another person. ..,nd since he did not at a l l im plicate h in r e lf in that statement, there was strong cause to doubt

the voracity o f h is sto r y . But, that is only on the assumption that the statement was evidence against the f i r s t accused. The tru e position is that it was not and thus i t should not have been taken into consideration against the f i r s t accused. I w ill remind the learned M agistrate that even in a s itu a ­ tion where an accused im plicates his co-accused in an unsworn statement made in co u rt, thac statement cannot in law be taken into consideration against the co-accused: See P a tric i Ozia VR - 1957 I*A 36, anong many a u th o r itie s . I t would have been d iffe r e n t i f the second accused had given such evidence in court on oath or a ffirm a tio n . In that event his evidence would have been on the same footin g as that o f any other witness and might have been taken into consideration against the f i r s t accused ir r e s ­ pective o f whether.the second accused would have im plicated him self or nets Of course, bearing in mind that i t i s e s s e n tia lly accomplice evidence. The sun o f i t a l l is that the conviction was certa in ly ban eel on evidence which was had in law and weak in fa c t and i t is not surprir.'ing that Hr. I\/tabaye fo r the Republic f e l t bound to concede straightaway that he did not support the con viction . The appeal i s accordingly alloved and the conviction quashed. The sentence o f fiv e years imprisonment , which in c id e n ta lly was excessive, as >tc11 as the order fo r compensation, are se t aside and the appellant is to be se t free fron custody forthwith unless he is detained on another lawfv.1 ground." The a p p e lla n t’ s grounds of a p ical arc that (1 ) That I neither saw the 1st accused nor anybody e lse cnter_the o f f ic e through the window during a l l that tin e when I was on guard.

2. That the P olice threatened to ham nc and then they forced nc to sign on the paper they -ad prepared without ny knowledge. In actu al fa c t I signed fo r s one thing which I had not a prior knowledge o f i t s con ten ts.

3. That had there been any trouble at t ie o f f ic e I would not hrvc h esitated to contact ny fellow watchman on the matter.

4. That T was conducting ny duties very smoothly. Therefore I did not -mow what happened in the o f f ic e as I had checked the door and the window and seen that they were locked and shut r e s p e c tiv e ly .

5. That the t r i a l learned M agistrate nade an error bjr considering the stateneni which the p o lice prepared and forced ny to sig n . In fa c t th is evidence was con plctely u n r e lia b le .

6. That I never know where the noney was l e f t a i our o f f ic e and therefore I was completely inocent of the a l l e s to le n noney. 1 hcther the poney ras kept in a safe or in a drawer I could not know. *'n& to the best o f ny knowledge no one opened the window and entered the window during ny o f f ic e hours. In view of the 1st accused’ s a c q u itta l by the High Court nd in view of the fa c t that ap c l i e n t 's ground 6 of his ppeal could be true and that I t was possible that the onplainant P*’v . 2 M artini Mikimbila. could have nisappropriatcd ic money hurridly and then stage the t h e f t , 'I find i t unsafe o uphold the a p p e lla n t's con viction . The appeal i s fo r the above reasons allow ed. The onviction i s quashed and the sentence and orders made there ider arc set a sid e . The appellant i s to be se t at lib e r ty forthwith unlesi held la w fu lly under other charges. / ■/ S V((‘/,A M. P.'SK. IOHICII/.

JUDGE 4 /5 /1 9 7 7 Delivered in open court th is 6th day o f liay, 1?77. ( M. rN&r-EIHICIiA )

JUDGL 6th May. 1977