Jileka Machiya vs Republic (Criminal Appeal No. 193 of 2021) [2023] TZCA 17700 (3 October 2023)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MKUYE, J.A., GALEBA, J.A., And MASOUD, J.A.) CRIMINAL APPEAL NO. 193 OF 2021 JILEKA MACHIYA .••• 11 •••• ■ • • I •••••••••••••••••••• I •••••••••••••••••• I 11 •• I I I ••• I I •• APPELLANT VERSUS THE REPUBLIC ................ . ................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Bahati, J.) dated the 5 th day of March, 2021 in Criminal Sessions Case No. 53 of 2018 JUDGMENT OF THE COURT 18 " September, & J'd October, 2023 GALEBA, J.A.: Jileka Machiya, the appellant in this appeal, together with Ngasa Hi ngu, not a party to this appeal (the other accused person), were jo intly charged with murder contrary to section 196 of the Penal Code, and were tried before the High Court of Tanzania at Tabora, in Criminal C as e No. 53 of 2018. At the height of it all, the appellant was convicted of the offence charged and was sentenced to suffer death by hanging. The other accused person was adjudged blameless and was accordingly discharged. 1
The condensed facts leading to the trial in the High Court ac cording to the prosecution, was that around 23 :00 hours on 23 rd Fe bruary, 2016 at Legezamwendo Village within Uyui District in Tabora Region, the appellant and the other accused person invaded the home of Kabunye Njige (the first deceased) and Fumbo Jileka (the second deceased) who were husband and wife, respectively. The deceased per sons, had on that day, slept in two different houses which were erected within the same compound. Upon the offensive action, the two doo rs of the houses, were contemporaneously broken into pieces by the as sailants. The two aggressors, each stormed into the house of his re spective target. As the appellant entered into the house where the first deceased was sleeping, the other accused person raided the house in to which the second deceased was. Upon getting to a suitable close range with their victims, the invaders simultaneously launched merciless and brutal attacks on the defenceless deceased persons such that the bl ows of heavy and blunt equipment on the unsuspecting victims, led to their respective deaths, almost instantly. According to Dr. Sendabakila Sergio, (PWl), the medical practitioner who investigated the caus e of the deaths, both deceased per sons died of respiratory and cardiac arrest caused by depressed 2
wound on the first deceased's frontal skull and a clotted blood in the d ep ressed left side of the second deceased's skull. Following the cruel murder of the couple, the police investigation en s ued and a criminal trial was mounted in the High Court where, as in dicated above the appellant was convicted of the murder and his co lleague, discharged. This appeal is challenging the said conviction and se ntence of the appellant. At the hearing of the appeal, he was re presented by Mr. Kelvin Kayaga, learned advocate, whereas the re spondent Republic had the services of Ms. Lucy Enock Kyusa, learned St ate Attorney. The appeal was originally based on four grounds of appeal, but at the hearing Mr. Kayaga abandoned the 2 nd , 3 rd and 4 th grounds and re tained only the first ground, which he argued in addition to two more grounds which the appellant had lodged through him, under rule 73 (2) of the Tanzania Court of Appeal Rules 2009, (the Rules) . Thus, the ap p eal was, as a whole based on three grounds, which were as follows:- 11
- The case was not proved against the accused beyond reasonable doubt "
- That the proceedings and decision of the trial court are fatally defective against the interests of Justice, for the assessors did not participate fully in 3
the proceedings due to improper summing up by the learned High Court Judge. 3. That the judgment of the trial court was founded on the proceedings conducted in violation of the right to a fair trial against the appellant on several occasions, including but not limited to convicting the appellant during the delivery of the ruling of the prima facie case to answer, by denial of the right to object to the appointment of the assessors, by failure to give reasons for rejecting a prayer to call the medical doctor and by improper rejection of the defence exhibit and relying on its contents in a final decision. In arguing the appeal, Mr. Kayaga started off with the second ground of appeal. He contended that the appellant was not fairly tried an d hinged that contention on three distinctive points. First, he submitted that after selection of assessors, the trial court did not afford the appellant, a right to object to the participation of any of them in his tria l. On this omission he referred us to page 45 to 48 of the record of appeal. Second, he submitted that, at page 87 of the record of appeal, when the trial court was making an order that the appellant had a case to answer, it conclusively held that the appellant had committed the off e nce charged without even hearing his defence. According to learned 4
counsel, the appellant's conviction was unlawfully predetermined quite prematurely. Third, Mr. Kayaga submitted that at page 100 of the re cord of appeal, the appellant prayed to call a m_ edical doctor in order to tender his PF3, but the trial court declined the prayer without as signing any reasons. Based on those points, the learned advocate contended that, in appropriate circumstances, the proper order to make would have been to nullify the proceedings, quash the conviction and set aside the sentence and order a trial of the appellant de novo. However, he added, the evidence on record, was full of illegalities, such that a retrial cannot be a fit order to make in the circumstances. That contention, took Mr. Kayaga to the 1 st ground of appeal on the illegalities. In respect of the first ground of appeal, he argued that the co nviction of the appellant was wholly based on a cautioned statement of the appellant which was admitted as exhibit P3 and an extra judicial statement, exhibit P4, which exhibits were not supposed to be admitted or accorded any evidential value. In expounding his point of view in respect of exhibit P3, Mr . Kay aga contended that although the cautioned statement was recorded at 12 . 00 hours on 6 th March, 2016, the appellant had been arrested and 5
presented to the police at 00.00 hours on the same 6 th March, 2016. It me ans therefore that exhibit P3 was recorded 12 hours after his arrest which was beyond the 4 hours provided by sections SO and 51 of the Cr iminal Procedure Act, (the CPA). In this respect, the learned advocate im plored us to hold that the cautioned statement was unlawfully admitted in evidence and it was, therefore, illegally used to convict the ap pellant. As for exhibit P4, the extra judicial statement, learned counsel arg ued that, at page 76 of the record of appeal, the appellant objected to tendering and admission of it for want of his voluntariness at the time of recording it, but the trial court went on to admit it without carrying ou t a trial within a trial as required by law. Following that omission, he im plored us to expunge the exhibit. According to Mr. Kayaga, as the whole case depended on exhibits P3 and P4 consequent to expunging exhibits P3 and P4, there would be no credible evidence remaining on the record upon which a valid co nviction may be based. With the submissions, the learned counsel pra yed that we allow the appeal and set the appellant to liberty. Like her counterpart, Ms. Kyusa supported the appeal because the se lection of assessors had problems. She argued that none of the parties 6
was accorded a right to object to the assessors selected and as stated by Mr. Kayaga, if the matter will be remitted for retrial there would be no evidence for the trial de novo. She further agreed with Mr. Kayaga, that both exhibits P3 and P4 have to be discarded, which act will leave no meaningful evidence upon which the appellant may be retried assuming the order to do so is made. She, therefore, prayed that this appeal ought to be allowed. On our part, we have considered the submissions by learned counsel for the parties, as well as the record of appeal before us. We ha ve also revisited various authorities setting down principles applicable in scenarios akin to that obtaining in this appeal. However, before getting to the appropriate discussion, we wish to observe that the general practice in this Court is that we do not automatically endorse a non-contested position of parties to any matter before the Court. So, ev en where parties to a matter maintain a common position on a particular aspect of the law or practice, as it has happened in this ap pe al, we invariably consider and determine the soundness of the non - contested position of parties and see whether it is consistent and compatible with the laws of Tanzania . Thus, the following discussion is aimed at doing just that. 7
First, it must be remembered that at the time this trial was taking pl a ce in the High Court in 2021, section 265 of the CPA had not been amended by the Written Laws (Miscellaneous Amendments) Act, No. 1 of 2022, which made participation of assessors in trials before the High Court optional. So, participation of assessors in trials in the High Court wa s, at the time, in February 2021 when the case was tried in the High Court, mandatory. In this case at page 47 to 48 of the record of appeal, as sessors were selected, and to do so this is what the trial court did: "Court: Selection of Assessors as provided under section 285 of the CPA is done. Assessors:
- Ms. Muhtaza Hussein
- Ms. Grace Mwiga.
- Ms. Rehema Mwambelo. Assessors to court : I do not know the accused person nor the deceased. Assessors to court: I do not know the accused person nor the deceased. Assessors to court: I do not know the accused person nor the deceased. Court: Assessors are requested to take their seats and their duties are explained accordingly. 8
A.A. BAHATI JUDGE 17/2/2021 PROSECUTION CASE OPENS: ........ " This quotation means that selection of assessors started and got completed before the appellant was given a right to object to any of the as s essors although it appears the assessors themselves were given a right to object to participating in the trial. On many occasions, this Court has held that such a practice is unlawful. In Laurent Salu and Five Others v. R, Criminal Appeal No. 176 1993 (unreported), this Court observed: - ''Admittedly the requirement to give the accused the opportunity to say whether or not he objects to any of the assessors is not a rule of law. It is a rule of practice which, however, is now well established and accepted as part of the procedure in the proper administration of criminal justice in this country. The rationale for the rule is fairly apparent. The rule is designed to ensure that the accused person has a fair hearing. " of That means, failure to afford the appellant an opportunity to object to the assessors, denied him a right to a fair hearing. In Kabula Luhende v. R, Criminal Appeal No. 281 of 2014 (unreported), this 9
Co urt observed that a fair hearing which is synonymous to a right to a fair trial, is a universally recognised human right and its non-observance violates article 13 (6) (a) of the Constitution of the United Republic of T an zania 1977. That means, the omission is not a matter to take lightly. In Monde Chibunde Ndishi v. R, Criminal Appeal No. 329 of 2017 (unreported), we stated that failure to afford an accused person a right to object to assessors prejudices the accused in question. For this re a son, we agree with both learned counsel that the appellant's right to fair trial was perverted, which infraction vitiated his trial to core. Based on the above unfair trial of the appellant, as prayed by both le arned counsel for the parties, we nullify the proceedings and the judgment, we quash his conviction and set aside the sentence of death that was imposed upon him by the trial court. In appropriate circumstances, having nullified all that was done by the trial court, we need to consider whether the submissions of counsel for parties that we should not remit the record to the High Court for re t rial, because exhibits P3 and P4 upon which the appellant's conviction w as based were illegally relied upon by the trial court. We will now focus ou r full attention to consider the validity or otherwise, of that joint co ntention of counsel. 10
We will start with the cautioned statement of the appellant exhibit P3 and find out whether the same was recorded out of time. The evidence of No. E 9471 Detective Cpl Heri, (PWS) at page 59 of the re cord of appeal is to the following effect, as to the timing of recording exhibit P3 :- ... Previously, Jileka Machiya was arrested by the community and sent to the office of the VEO on 3/3/2016. The accused was handed over on 5/3/2016 to the police at Isikizya. He arrived around 00.00 hours on 6/3/2016. On 6/3/2016 I was directed by the OC-CID to take his statement. ... We started the interview at 12:30 hours. The accused admitted having killed the deceased. I noted the confession." [Emphasis added] Of course, there is a discrepancy between the start time as per the ev idence above, which is 12:30 hours on 6 th March, 2016, and the time recorded on the exhibit itself. The time indicated on the exhibit at page 129 of the record of appeal, reveals that the interview started at exactly 12:00 hours and ended 14:00 hours. In both cases however, counting from 00:00 when the appellant arrived at the police station to 12:00 noon, is 12 hours and from that time to 12:30 hours, is 12 hours and 30 11
minutes. In law, neither scenario is better than the other because the pe rmitted time from presentation of the suspect to the police to starting the interview should not exceed 4 hours. The law applicable in this sc enario is section 50 (1) (a) and (b) of the CPA which is to the following effect:- "50.-(1) For the purpose of this Act the period available for interviewing a person who is in restraint in respect of an offence is- ( a) subject to paragraph (b) ✓ the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence; (b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended. " In other words, the time available under the CPA to record a suspect's statement in relation to the offence he is suspected to commit, is four hours from the time of his restraint up to starting of the interview. In circumstances where there is need to extend the period, the extension must be sought and obtained in terms of section 51 of the CPA. We find no point to get to the discussion of section 51 of the CPA 12
be c ause there was no argument suggesting that there was any extension of the basic period available for recording a statement. In this case, we demonstrated a while ago, that interviewing the ap pellant commenced 12 hours from the time he was restrained at the po li ce. In law, a cautioned statement recorded out of the prescribed time of 4 hours without extension being sought and obtained, is in vi olation of sections 50 (l)(a) of the CPA. Such cautioned statement is not admissible, and if admitted as it happened in the instant matter, it is liable for being disregarded and rendered of no evidential value at all; s ee Ramadhan Mashaka v. R, Criminal Appeal No. 311 of 2015 and - Charles Nanati v. R, Criminal Appeal No . 286 of 2017 (both un reported). Thus, the cautioned statement, exhibit P3 having been recorded in vi ol ation section 50 (l)(a) of the CPA, we hereby discard it and declare it to be of no evidential value for having been illegally admitted by the trial c ou rt. That stance permits us to cross over to the discussion on the complaint involving exhibit P4, the appellant's extra judicial statement. Just to recap in a few words, the non-contested complaint of the ap pellant's side was that the tendering of the extra judicial statement w as objected but no trial within trial was conducted to establish the voluntariness of the appellant in giving the statement. To find out what 13
tr anspired in court we will go to page 71 of the record of appeal, where Fe lix Rwapalila (PW6), a Magistrate at Kigwa in his capacity as a justice of the peace, was seeking to tender the disputed exhibit. The following tr anspired: - "Defence Counsel: I object to the admission for the following reasons of the first accused. It is the statement taken against the Chief Justice Guidelines on admission of extra judicial statements. Secondly, this statement was taken under torture. '' [Emphasis added] According to learned counsel, after this objection was made, the co u rt was supposed to immediately stop all that was happening and initiate a trial within trial proceedings to establish the voluntariness of appellant at the time of giving the disputed statement. Although neither Mr. Kayaga nor Ms. Kyusa availed us with any authority on the proposition they fronted, we will on our own do something about it. In this case after the objection was made, the trial court permitted counsel to argue in support of their contending positions then adjourned the matter for ruling. The ruling of the trial court on this aspect is traceable be t ween pages 76 and 83 of the record of appeal. Consequent to the rul ing, the extra judicial statement of the appellant was admitted as 14
exhibit P4. The learned counsel's point was that the ruling above was supposed to be a ruling not based on lawyers' arguments, but on evidence recorded from witnesses in a trial within trial. That impress us to make a point or two on the law of confessions. In this jurisdiction, substantive law on confessions is provided for under Part III of the Evidence Act, running from section 27 to 33. Confessions are typically of two categories; one, those made before a po l ice officer while a suspect is under restrain of the Police. In court practice, this type of confession is also known as a cautioned statement, and the relevant provision is section 27 of the Evidence Act. Category two, are those confessions made before a Magistrate or a justice of the peace which are also called extra judicial statements. These are provided for under section 28 of the same Act read together with Section 59 of the Magistrates' Courts Act. One side point is that, whereas the procedure of recording a cautioned statement is regulated by the CPA, that for recording an extra judicial statement is provided for in the Guide for Justices of the Peace, see laphet Thadei Msigwa v. R, Criminal Appeal No. 367 of 2008 (unreported). Presently the Guide for Justices of the Peace has been updated and published in "A Handbook for Magistrates in the Primary Courts', which is available in the Judiciary. 15
Under the law, where during a trial, an objection is raised that any of the confessions, be it a cautioned statement or an extrajudicial statement was procured involuntarily, the only next thing for the presiding judicial officer to do, is to put in abeyance all that the court is do i ng and carry out a min trial within the ongoing main trial, also called a trial within a trial. The objective of this legal process, is to give the prosecution an opportunity to prove that indeed the statement was procured voluntarily. As for proving voluntariness when recording a cautioned statement, there is an endless list of decided cases attesting to this Court practice including Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 and; Sylvester Fulgence and Another v. R, Criminal Appeal No. 507 of 2016 (both unreported). The same applies to extra judicial statements. In Richard Lubilo and Another v. R, [2003] T.L.R. 149, we stated: - " .. the law of this country is that in order for a confession to be admitted in evidence it must be voluntary. The law places the onus on the prosecution to prove affirmatively the voluntariness of any confession sought to be put in evidence. That is the rule of procedure which emerges from the totality of sections 27 and 28 of the Evidence Act as well as decided cases over the years. " 16
[Emphasis added] Under the law therefore, to prove voluntariness of the accused pe r son at the time he gave an extra judicial statement under section 28 of the Evidence Act, like it is with the cautioned statement, is by ca rrying out a trial within a trial. That is to say, when the objection was rais ed as to the appellant's voluntariness in respect of exhibit P4 as quoted above, the trial court was duty bound to halt the proceedings temporarily, and take evidence of parties on the issue and make a ruling on the evidence received. It was superfluous and a sheer waste of effort therefore, for the court to have recorded arguments of learned counsel and delivered a ruling on them . Thus, we agree with both learned counsel that exhibit P4 was also illegally admitted, and for that reason we discard it. Now, minus the discredited confessions, what remains on record is the evidence of PWl, the medical doctor and five other witnesses. We will go through this evidence very quickly. The evidence of PWl sought to establish the cause of death of the victims of the murder but the ev idence, cannot and did not point to any person as having murdered an y person, leave alone the deceased persons. The other witness is Kija Kabunya (PW2), who testified that the appellant wrote a letter threatening to kill the second deceased, but the 17
letter was not tendered. He also stated that the appellant paid a fine of TZ S. 900,000/== to the second deceased as a fine for threatening her, bu t that fact was not positively proved. During cross examination he stated that there is no evidence to show that the TZS. 900,000/= was pa id by the appellant. This evidence is not only remote, but also it is very unreliable. The evidence of Mwagi Mayaya, (PW3), is a plain hearsay account. He received information of the deaths from Kulwa Lugata. He stated that the appellant had admitted writing a letter and he paid a fine before the Village Executive Officer (VEO). According to his suspicion, the pe r son who murdered the deceased persons is likely to have been the ap pellant. In our view the dependability of such evidence is incredibly poor. Said Hamadi Nzuki, (PW4), was the next witness. The witness does not give any useful credible account. Although he was acting VEO, du ri ng cross examination he confirmed to know nothing about the letter that was alleged to have been written by the appellant threatening to kill the second deceased. What he told the court, was nothing but a hearsay story. Next was E9471 Cpl (PWS) Heri. This is the police officer who tendered exhibit P3 which we have just declared to be evidentially worthless. Other than the discarded exhibit, the witness had nothing first hand to connect the appellant with the killings. PW6 was the justice 18
of peace, who recorded and tendered the abortive exhibit P4 in court. Hi s meaningful evidence would have been the said exhibit, but as indicated, its substance no longer amounts to anything legally. The last prosecution witness, G4357 DC Shadhili (PW7), drew a sketch map of the crime scene, which is irrelevant as far as the person who committed the murder is concerned. The reason we had to navigate the remaining evidence after di scarding exhibits P3 and P4, is because, under the law it is not au tomatic that once a portion of the evidence is rendered valueless, then the remaining evidence becomes insufficient as a rule in all cases. Sometime the remaining evidence may be sufficiently credible to found a conviction notwithstanding that part of the evidence which has been expunged. In this case, we have carefully considered the remaining evidence after discarding exhibits P3 and P4 both in terms of weight and va lue; and we can confidently confirm with certainty, that the quality of the remaining evidence is so poor that, it cannot be considered to have come anywhere closer to proving the appellant's guilt beyond re asonable doubt. For the above reasons, we are unable to sustain the appellant's conviction or the sentence. Thus, we allow the appeal, and order an 19
immediate release of the appellant from prison, unless he is held there for another lawful cause. DATED at TABORA this 3 rd day of October, 2023 R. K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 3 rd day of October, 2023 in the presence of the appellant in person, Mr. Kanan Chombala holding brief for Mr. Kelvin Kayaga, learned Counsel for the Appellant and Mr. Nurdin Mmary, State Attorney for the Respondent, is hereby certified as a true copy of the original. S. P. MWAISE E DEPUTY REGISTRAR COURT OF APPEAL 20