Said s/o Salum vs Republic (Criminal Appeal 499 of 2016) [2020] TZCA 1881 (2 December 2020)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MKUYE. 3.A.. SEHEL. J.A. And KITUSI. J.A.^ i CRIMINAL APPEAL NO. 499 OF 2016 SAID s/o SALUM .............................................................................. APPELLANT VERSUS THE REPUBLIC ..... .................................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) fKorosso. J.^ dated the 6th day of October, 2016 in Criminal Appeal No. 6 of 2016 JUDGMENT OF THE COURT 17th Nov, & 2n d December, 2020 SEHEL. J.A.: The present appeal arises from the decision of the High Court of Tanzania sitting at Dar es Salaam (the first appellate court) that affirmed the conviction of the appellant but varied the sentence meted to the appellant by the District Court of Kilosa at Kilosa (the trial court). The brief facts leading to the present appeal are such that; the appellant was arraigned before the trial court for committing unnatural l

offence contrary to section 154 (1) (a) of the Penal Code, Cap 16 RE: 2002. It was alleged in the particulars of the offence that the appellant on 6th July, 2015 at about 20.00 hrs at Magubike Village within Kilosa District in Morogoro Region did have carnal knowledge to one SS (name withheld and shall henceforth be referred to as PW2) against the order of nature. After the charge was read to him, he pleaded not guilty. To establish the guilt of the appellant, the prosecution paraded a total of three witnesses and tendered one exhibit, PF3 (Exhibit PI). On his part, the appellant relied on his own sworn evidence and did not bring any other witness. The story of the three prosecution witnesses goes like this; on 5th July, 2015, Leah Steven (the mother of PW2 and the prosecution witness number one who we shall refer to as "PW1") noticed her son (PW2) not walking properly. She informed his father (the appellant) who was staying with PW2 as the two had separated from their marriage. Upon receipt of the information from PW1, the appellant forced PW2 to disclose to him as to what had happened to him by beating him. PW2 did not say anything to him. Later, PW2 went to his uncle and told him that his father sodomized him and he had been doing it for about a week. The said uncle reported the matter to the village leaders who interrogated the appellant but he denied.

The appellant was then arrested and taken to the police station whereby upon being interrogated by Mariam Alex Mshangi (PW3) he also denied the allegations. PW2 was given PF3 and was taken to hospital for medical examination which revealed that he had bruises around the anal area. The appellant in his sworn testimony maintained that he did not do such an act and that PW2 was tutored by his mother to lie and his son likes to tell lies. The trial court after considering the evidence of the three prosecution witnesses and one exhibit from the respondent Republic found the appellant guilty. It convicted and sentenced him to life imprisonment. His first appeal to the High Court against conviction was dismissed save for the sentence which was varied to 30 years imprisonment. Still protesting his innocence, the appellant filed the present appeal on the following grounds:-

1. That, the two courts below erred in law and fact fo r acting on bare assertion that the victim (PW2) was sodom ised without positive evidence showing the exact tim e and place where the alleged offence was committed.
2. That, the first appellate court erred in law and fact by upholding the m edical report- PF3 (exhibit P I) despite that the same was un proceduraUy tendered by the prosecutor (PP) who cannot assume a 3

role o f a prosecutor and a witness o f tendering the PF3 a t the same time. 3. That, the judgm ent o f the two courts below was fatally defective due to that the low er court failed to consider the defence case. 4. That, the first appellate court erred in law by sustaining the appellant's conviction in the case where the appellant was deprived o f h is right o f having his witnesses in h is defence as he opted at the defence stage. 5. That, there is failure o f justice as the PF3 (exhibit PI) which is the basis for the appellants conviction was issued on 8/7/2015 but the observation fille d In the PF3 was made on 8/8/2015. 6. That, there was irregularities or procedural errors apparent on the face o f the record as the tria l m agistrate failed to explain in fu ll to the appellant the options available to him in giving h is defence as demanded by law, but also the defence did not dose its case. 7. That, the first appellate court erred in law by upholding the evidence o f the victim (PW2) received or recorded via un procedural voire dire test which contained no legal procedures o f voire dire test Before us, the appellant appeared in person, unrepresented, via video link conference from Ukonga Prison, whereas Faraja George, learned Senior State Attorney assisted by Ms. Nancy Mushumbusi, learned State Attorney, appeared for the respondent Republic. 4

Initially Ms. George did not support the appeal but after being referred to the trial court's finding and that of the first appellate court, she changed her line of argument and supported it. In her support, she hinged her submission mainly on lack of corroboration on PW2's evidence and PF3 was un procedurally tendered and admitted. Starting with the evidence of PW2, the learned Senior State Attorney argued that the evidence of PW2 which appears at pages 10 to 11 of the record of appeal, was received without an oath hence it required corroboration. She pointed out that the trial court found corroboration from the evidence of PW1 whose evidence was hearsay because she did not witness the appellant sodomizing PW2. It was the view of Ms. George that hearsay evidence could not corroborate the unsworn evidence of PW2. She further added that even the voire dire test was not properly conducted by the trial magistrate as he did not indicate whether the child understands the duty of speaking the truth. To support her stance, she referred us to pages 10 to 11 of the record of appeal and argued that the witness (PW2) was of tender age because at the time he was giving evidence, he was 13 years old. She added that the law, prior to the amendment of section 127 (2) of the Evidence Act, Cap. 6 R.E 2002 ("the

Act"), required the trial magistrate to satisfy himself that the child understands the nature of oath or is of sufficient intelligence and he knows the meaning of telling the truth. She contended that the trial magistrate partly complied with that procedure by seeking from PW2 about the nature of oath and not about telling the truth. With such deficiency, she said, the evidence of PW2 is treated as unsworn evidence. Addressing us on the flouting of procedure in tendering Exhibit PI which was the second ground of appeal, Ms. George argued that according to the record of appeal, it shows that PF3 was tendered by an incompetent person, the Public Prosecutor ("the PP") who was not a witness and added that after its admission it was not read out to the appellant for him to know and understand its contents. She accordingly urged us to expunge Exhibit PI from the record of appeal. With the above submission, the learned Senior State Attorney contended that the prosecution failed to prove its case to the required standard of proof beyond reasonable doubt. She therefore, urged us to allow the appeal by quashing the conviction, setting aside the sentence and let the appellant free from prison custody. 6

The appellant, on his part, had nothing to rejoin apart from beseeching us to allow the appeal with an order of his release from the prison custody. Having considered the evidence on record and heard the submission from Ms. George we entirely agree with her that the appeal has merit. We shall start by stating the obvious that the testimony of PW2 was received by the trial court in 2015 prior to the amendment of sub-section (2) of section 127 of the Evidence Act, Cap. 6 in 2016 through the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 of 2016). The Act required the trial judge or magistrate to conduct voire dire test to a witness of a tender age in order to satisfy himself whether the child understands the nature of an oath, or is of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. That position of the law was lucidly stated in the case of Jafason Samwel v. The Republic, Criminal Appeal No. 105 of 2006 (unreported) that: "This provision (section 127 (2) o f the Evidence Act, Cap. 6 p rior to the amendment) im poses the duty on the tria l m agistrate or judge to investigate whether the child witness knows the meaning o f an oath so as to give evidence on oath or affirm ation. I f the child does 7

not know the meaning o f an oath , then the tria l m agistrate or judge m ust investigate whether he is possessed o f sufficient intelligence and understands the duty o f speaking the truth. I f he is satisfied that the child is possessed o f sufficient intelligence and understands the duty o f speaking the truth, he may receive his evidence though not given on oath or affirm ation. In determ ining whether the child is possessed o f sufficient intelligence and understands the duty o f speaking the truth , the tria l m agistrate or judge m ust conduct a voire dire examination. He m ay put some questions to the child and from his answers he may be able to determ ine whether the child is possessed o f sufficient intelligence and understands the duty o f speaking the truth. How a voire dire test is conducted appears to be a m atter o f style. But recording questions and answers appears to be a better way because this enables even an appellate court to know whether the questions asked and the answers given were such that any court o f law would have come to the conclusion that the child was possessed o f sufficient intelligence and understood the duty o f speaking the truth." 8

As rightly submitted by the learned Senior State Attorney, where the reception of the testimony of a child of tender age is done without properly conducting voire dire examination that evidence is reduced to a level of unsworn evidence and it requires corroboration before it can be relied upon to convict an accused person. In the case of Nguza Vikings @ Babu Seya & 4 Others v. The Republic, Criminal Appeal No. 56 of 2005 (unreported) where the trial magistrate did not properly conduct the voire dire test as she failed to record the questions that were put to the witnesses and their answers and instead she went to record what she found out of the child witnesses, the Court said:- "For the failure to comply with the procedure for conducting "voire d ire " examination properly, the issue before us is what would be the effect o f the om ission? Fortunately this is an issue which need not detain us. As correctly pointed out by both the learned counsel for the appellants and the learned Principal State Attorney, the position o f the law is settled. The om ission brings such evidence to a level o f unsworn evidence o f a child which requires corroboration." 9

(See also the cases of Mohamed Sainyeye v. The Republic, Criminal Appeal No. 57 of 2010 and Kimbute Otiniel v. The Republic, Criminal Appeal No. 300 of 2011 (All unreported)). In the present appeal, there is no dispute that the voire dire test was improperly conducted by the trial magistrate and the trial magistrate received the evidence of PW2 without oath or affirmation. Therefore, his evidence was unsworn evidence and the trial court found that it required corroboration. Here we wish to point out that the first appellate court found that voire dire examination was properly conducted. With due respect, our perusal of the responses of PW2 appearing at pages 10 and 11 of the record of appeal which the learned Senior State Attorney invited us to look, we failed to go along with the finding of the first appellate court. There is nothing in the record to show that the voire dire test was properly conducted. For better appreciation as to what transpired at the trial court we take liberty to reproduce the relevant extract of the trial court's proceedings and it reads as follows:- 10

"PW2:- Voire dire My name is (he toid the tria l court his name but for the purpose o f concealing h is identity we sh all hide it), I am 13 years old. I am studying a t (he told the tria l court the school he attends o f which we sh all also hide it), I am in class three, I was staying with m y father, I am a Muslim, and I don't understand the nature o f oath. Court:- it appears that the witness has sufficient intelligence but he does not understand the nature o f an oath thus he is not sw orn." The above excerpt of the proceedings shows clearly that the provision of section 127 (2) of the Act was partly complied with by the trial magistrate. He did put a question to PW2 as to whether he understood the nature of oath but he did not ask the child as to whether he understood the duty of speaking the truth. In reaching to its finding that there was compliance in voire dire examination the first appellate court relied on the case of Kimbute Otiniel v. The Republic (supra) of which we entirely agree that: "Where there is a m isapplication by a tria l court o f section 127(1) and/or 127(2) the resulting evidence is to be retained on the record. Whether or not any l i

credibility, reliability, weight or probative force is to be accorded to the testim ony in whole, in part or not a t a ll is at the discretion o f the tria l court. The law and practice governing the adm issibility o f evidence; cross- examination o f the child witness, critical analysis o f the evidence by the court and the burden o f p roof beyond reasonable doubt, continue to apply." In the present appeal, the trial magistrate correctly retained the unsworn evidence of PW2 but in its assessment of giving credence and weight it found that such unsworn evidence required corroboration. Therefore, in convicting the appellant, the trial magistrate used the evidence of PW1 to corroborate the unsworn evidence of PW2. And this takes us to the issue as to whether the evidence of PW1 had any evidential value for it to corroborate the evidence of PW2? We have revisited the evidence of PW1 appearing at page 10 of the record of appeal and we find that it has nothing to corroborate the evidence of PW2 as it was held by the first appellate court when it said:- "....the evidence o f PW1 does not in any way assist the court to either find that PW2 was sexually assaulted because the only evidence she gave was the im proper 12

walk o f PW2 which raised suspicious on her part, but PW2 never told her anything." We are of the same observation that PW1 did not witness the act of sodomization. She heard it from the uncle that PW2 was sodomized by the appellant. The rest of what she told the trial court was that she saw the child not walking properly and was curious to know the reason behind it. She tried to find the reason but PW2 did not disclose it to her. In that regard, we concur with the learned Senior State Attorney that the evidence of PW1 is a pure hearsay and it being hearsay is not capable of giving corroboration to the evidence of PW2. Her evidence, therefore, is hereby discarded. The prosecution case also relied on the PF3 (Exhibit PI) which was, as observed by Ms. George, unprocedurally tendered by the PP as he was not a witness. Similarly, its admission was contrary to the laid down procedure because it was not read out after it was cleared for its admission. Although Exhibit PI was not relied upon by the trial court to convict the appellant but the first appellate court used it in corroborating the unsworn evidence of PW2. The PP being not a witness he could not be examined or cross- examined on the PF3. Thus, it was wrong for the PP to assume the role of a witness. 13

In Thomas Ernest Msungu @ Nyoka Mkenya v. The Republic, Criminal Appeal No. 78 of 2012 (unreported) we observed that: "A prosecutor cannot assume the roie o f a prosecutor and a witness at the same time. In tendering the report the prosecutor was actually assuming the role o f a witness. With respect, that was wrong because in the process the prosecutor was not the sort o f witness who could be capable o f examination upon oath or affirm ation in term s o f section 198(1) o f the A ct." We fully subscribe to that position. On the second limb regarding failure to read out the PF3 in court, the record bears out that after the PF3 was admitted it was not read out in court. It is now settled law that once a document has been cleared for admission and admitted in evidence, it must be read out in court. Failure to do so occasioned a serious error amounting to miscarriage of justice and that document ought to be expunged from the record. See:- Sunni Amman Awenda v The Republic, Criminal Appeal No 393 of 2013; Jumanne Mohamed and 2 Others v. The Republic, Criminal Appeal No. 534 of 2015; Manje Yohana and Another v. The Republic, Criminal Appeal No. 147 of 2016; and Issa Hassan Uki v. The Republic, Criminal Appeal No. 129 of 2017 (All unreported). 14

Accordingly, Exhibit PI ought to be and we do hereby proceed to expunge it from the record because there was a flouting of procedures in tendering and admitting it. After disregarding the evidence of PW1 and expunging Exhibit PI from the record, there is no any other evidence left to corroborate the unsworn evidence of PW2 worth for sustaining a conviction of unnatural offence against the appellant. Before we pen off, we need to say something on the way the trial magistrate appreciated and articulated the evidence presented before her. We are dismayed to find that the trial magistrate in her judgement twisted the facts presented before her to her own personal view. In her judgment, the trial magistrate translated the words "if I say 'kiduka kitafilisikam (meaning the shop will deplete) to mean "....on grounds o f superstition on the b elie f that he would get rich ." 'Superstition " was the trial magistrate's own perception. It is not borne out of the record of proceedings. Nonetheless, we wish to remind magistrates on their judicial office oath that they should decide cases according to the presented facts and evidence and apply the legal principles and laws on those facts and evidence with no more. They should at all time put aside personal biases, attitudes, emotions, 15

and other individuating factors in the judgment for the preservation of fair trial. With that said, we find the appeal has merit. We, accordingly, quash the conviction and set aside the thirty years sentence imposed to the appellant. We order for the immediate release of the appellant, Said s/o Salum, from custody unless otherwise held for other lawful reasons. DATED at DAR ES SALAAM this 30th day of November, 2020. The Judgment delivered this 2n d day of December, 2020 in the presence of the appellant in person linked - via video conference from Ukonga Prison and Ms. Faraja George, learned Senior State Attorney for the respondent :opy of the original. R. K. MKUYE JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL