Merchades Burkadi vs Republic (Criminal Appeal No. 439 of 2022) [2024] TZCA 1172 (2 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CO RAM: MUGASHA, 3.A.. KHAMIS. J.A. And ISMAIL. J.A/ ) CRIMINAL APPEAL NO. 439 OF 2022 MERCHADES BURKADI.. ...... .......... ..................APPELLANT VERSUS THE REPUBLIC... ................ ..... .......... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Bukoba) (Kairo, J.) dated the 13th day of May, 2020 in Criminal Session Case No. 97 of 2016 JUDGMENT OF THE COURT 25th November &. 2nd December, 2024 KHAMIS, J.A.: In this matter, the appellant challenges judgment of the High Court, Bukoba for among others, failure to abide by the provisions of the Criminal Procedure Act, Cap 20 R.E 2022 (the CPA) prescribing the procedure for dealing with a report from the mental institution on the mental status of an accused facing a change on a capital offence. He contends that the omission prejudiced him and rendered his trial a nullity.

The information upon which the appellant was charged, tried and convicted was in respect of the offence of murder contrary to section 196 of the Penal Code, Cap 16, R.E 2022. It was alleged that, during morning hours on 26th day of February, 2015, at Ruhama village, within Karagwe District, Kagera Region, he murdered his own biological daughter, Witness D/o Merchades, a child of two years of age. In a bid to prove the case against him, the prosecution paraded four witnesses and produced three documentary exhibits. At the conclusion of trial, the appellant was found guilty and sentenced to suffer death by hanging. Aggrieved by the conviction, the appellant filed the instant appeal on six (6) grounds which includes the aforesaid accusation that, the High Court erred in failing to abide by the provisions of the CPA dealing with a report from the mental institution on his mental status. On account of what will be apparent in due course, we shall not give the factual background underlying the appeal. However, it is worth noting that, at the commencement of the trial, attention of the court was drawn to the mental status of the appellant following which the learned trial Judge invoked section 220 (1) of the CPA to commit him

to Isanga Institution for medical examination. The trial was thus adjourned. When the trial resumed, although the medical report was received by the trial court, it was not brought to the attention of the parties. The report surfaced during cross examination of the appellant, summing up to the assessors and briefly referred to in the impugned judgment where the appellant was convicted and sentenced to suffer death. At the hearing, we wanted to satisfy ourselves on propriety of the procedure adopted by the trial court in the handling of the report from Isanga Institution given that parties were not given opportunity to address the trial Judge as required by section 220 (3) of the CPA and the complaint featured as the fourth ground of appeal. When the appeal came up for hearing before us, Mr, Gerase Reuben, learned advocate, was on record for the appellant who was also present in person. On the other hand, Ms. Wampumbulya Shani, learned Senior State Attorney, teamed up with Mr. Enosh Gabriel Kigoryo, learned State Attorney, to represent the respondent Republic.

Basically, both sides were in agreement that, the trial court's manner of handling the report from Isanga Mental Institution was wanting and that alone could sufficiently dispose of the appeal. Mr, Reuben faulted the trial court for proceeding with the trial when circumstances indicated that the appellant was not fit to stand trial. He contended that, prior to commencement of the trial, attention of the court was drawn to the appellant's mental status following which the trial Judge committed him to a mental institution for examination. He found fault with the trial court for failure to address the medical report in terms of section 220 (3) of the CPA and maintained that, the report was irregularly raised during defence hearing, summing up to assessors and in the impugned judgment. On those bases, he was of the view that, the appellant was prejudiced and invited us to find that the resulting conviction and sentence were a nullity. The learned counsel further moved us to allow the appeal, quash the conviction, set aside the sentence and release the appellant from prison. Initially, Mr. Enosh Gabriel Kigoryo submitted that the prosecution had established the ingredients of the offence of murder against the appellant and the appeal could be determined on merits. On that

premise, he invited us to follow our decision in Charles Manyono v. Republic, Criminal Appeal No. 109 of 1999 (unreported) where in the course of hearing the appeal, the Court ordered the appellant to be medically examined on the mental condition at the time of the killing. The medical report from the Consultant Psychiatrist in Charge of Isanga Institution established the appellant was insane at the time of killing his wife and the infant daughter. However, upon reflection, Ms. Shani stood up to address the Court and asserted that, upon receipt of a report from the Isanga Institution, the trial court should have invoked section 220 (3) of the CPA. She reproached the style of introducing the report during cross examination of the appellant, summing up to the assessors and in the judgment as done by the trial court and contended that the procedure adopted was alien to the administration of criminal justice. She urged us to find that the appellant was prejudiced. The learned Senior State Attorney added that none of the parties was availed opportunity to address the court as required under section 220 (3) of the CPA. Expounding, she submitted that, this Court is not well placed to make its determination on the medical report that was neither admitted in evidence nor its contents tested during trial. She

argued that, ordinarily the report ought to have been scrutinized at the triai and parties heard on the matter. To that end, she moved us to return the matter to the High Court for consideration of the medical report after hearing the parties. In view of the submissions of the learned counsel for the parties and the record before us, one main issue that features for our determination is whether the trial court complied with section 220 (2) and (3) of the CPA in handling the report from Isanga Institution. The procedure for insanity cases in our country is outlined in sections 216 to 221 of the CPA. Section 220 (1) of the CPA empowers the trial court to order a psychiatric evaluation of the accused in a mental hospital if there are doubts regarding his mental status at the time of occurrence of the commission or omission complained of. In such cases, the court may suspend a trial pending receipt of a report by the medical officer in charge of the mental hospital. Upon receipt of the report duly signed by the medical officer in charge of a mental hospital on the mental condition of the accused stating if, at the time when the offence was committed the accused was insane or not, the trial court may cause the report to be admitted in

evidence (sect. 220 (2) of the CPA). Where the court admits such a medical report, the accused and the prosecution shall be entitled to adduce such evidence as relevant to the issue of insanity as they may consider fit (sect, 220 (3) of the CPA). The procedure prescribed above was tested in MT. 81071 PTE Yusuph Haji @ Hussein v. Republic, Criminal Appeal No. 168 of 2015 (unreported), where on receipt of the medical report the presiding Judge prematurely embarked on determination of the issue of insanity. On appeal, this Court concluded that, the proceedings giving rise to the appeal were materially flawed on account of premature determination of the appellant's mental status at the commission of the alleged offence. In Bosco Mgimwa v. Republic, Criminal Appeal No. 303 of 2015 (unreported), the appellant was committed to a mental hospital but the medical report was not admitted in court and no reference was made to it during the trial as required under section 220 (1) and (2) of the CPA. Addressing the situation, the Court observed that it is the duty of the trial court to ensure that the accused person's mental status at the time he is alleged to have committed the offence is established, if that question becomes relevant. 7

In this case, the appellant's mental state was raised after the conclusion of a preliminary hearing when Ms, Gisera Maruka, learned counsel for the appellant, informed the trial Judge that upon meeting her client and fellow inmates at the Kayanga Prison, she suspected unsoundness of his mental health and prayed for his committal to a mental hospital for examination. The prayer was not objected to by Mr. Haruna Shomari, learned State Attorney for the Republic and the trial Judge acceded to commit him to Isanga Mental Institution for psychiatric analysis in terms of section 220 (1) of the CPA. When trial resumed after almost eleven months, the appellant was present under custody and represented by Mr. Christian Byamungu, learned advocate, while the Republic enjoyed legal services of Mr. Haruna Shomari. However, there was no mention of a report from the mental institution. The issue regarding the appellant's mental status resurfaced in the course of trial, particularly during the defence hearing. On cross examination by Mr. Haruna Shomari, the appellant stated that: 7 am the one who slaughtered the child, the late Witness. I was once taken to Isanga for m ental examination. I do not have a report 8

which shows that I am sane. I had m ental problem but I do not have a report to that effect." On further cross examination, the appellant said: "The court can use the report from Isanga M ental Health Institute and take ju d icia l notice on that as I do not have a problem with th a t" In summing up to the assessors, the trial Judge pointed out that: "When cross examined DW1 conceded to be the one who slaughtered the late Witness. He further conceded to have been taken to Isanga M ental Health Institute for m ental examination and that he conceded for the court to take ju d icia l notice o f his report from Isanga. He also stated to have m ental problem but denied to have any report to that e ffe ct" The issue cropped again in the impugned judgment where the trial Judge concluded that: "The court is also alive that the accused person has told the court that he had m ental health problem s sometimes back, but has fu lly recovered. Besides, even the report from Isanga M ental Health Institute was categorical

that he was sane when com m itting the offence to which I jo in hands with basing on the analysis o f the evidence in its totality." Apparently, throughout the trial court's proceedings none of the parties addressed the trial Judge on compliance of the requirements of section 220 (2) and (3) of the CPA. It is evident from the record, that, after the report of the medical officer in charge of the mental hospital was transmitted to the trial court, the trial Judge did not draw attention of the parties on its existence. Therefore, the report was not admitted in evidence and parties were not afforded an opportunity to lead evidence relevant to the issue of insanity as required under section 220 (2) and (3) of the CPA. In the event, we are satisfied that the appellant was not afforded a fair trial which is a sufficient ground for the appeal to succeed (Rojeli Kalegezi & Two Others v. Republic, Criminal Appeal No. 141, CF 142 CF 143 of 2009 (unreported) and Mussa Mwaikunda v. Republic [2006] T.L.R 387). For the reasons stated, we uphold the fourth ground of appeal and find the proceedings and judgment of the trial court were a nullity and therefore, quash the conviction, set aside

the sentence and order that, the record be remitted to the trial court for retrial before another Judge in accordance with the law. DATED at BUKOBA this 2n d day of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 2n d day of December, 2024 2024 in the presence of Mr. Reuben Gerase, learned counsel for the appellant and Ms. Evaresta Kimaro, Ms. Matrida Assey both the learned State Attorneys for the Respondent/Republic, is hereby certified as a true copy of the original. 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL l i