The Director of Public Prosecutions vs Emmanuel Erasto Kibwana and Others (Criminal Appeal No. 576 of 2015) [2017] TZCA 1008 (13 October 2017)

~ ~Q ~)_Jf.1! l IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUSSA. J,A., MZIRAY. J.A., And NDIKA, J.A.) CRIMINAL APPEAL NO. 576 OF 2015 THE DIRECTOR OF PUBLIC PROSECUTIONS .................... APPELLANT VERSUS

1. EMMANUEL ERASTO KIBWANA l
2. MUSA SILUNGWE KYANDO
3. KELVIN MAURUS MUYOVELA ...................... RESPONDENTS {Appeal from the judgment of the High Court of Tanzania at Mbeya) (Levira, J.) 9 th & 13 th October 2017 NDIKA, J.A.: dated the 17 th day of September, 2015 in Criminal Sessions Case No. 3 of 2013 JUDGMENT OF THE COURT Before the High Court of Tanzania sitting at Mbeya, the respondents stand jointly charged with murder contrary to section 196 of the Penal Code, Cap. 16 RE 2002. It is alleged that the ·-·· - --------------------- -------h ---·--- -·----· --- -- -------------- - ------------- ---------------------- -- ·-- -- --------- respondents, on 19t day of December 2010 at Uhindini area within the City and Region of Mbeya, jointly and together, murdered one Uswege Mwaigomole. They all pleaded not guilty to the charge. The respondents' trial before the High Court began in earnest on 4 th March 2015 but, as would be expected, it experienced several 1 ------------------- ---- -----------------------------------------------------.------------------------------------------ -------- ·- -- ---·--- ----- ---------------- ---------------- - - ---- --- -------

tlo intervening adjournments. On 16 th September 2015, the ninth prosecution witness named Assistant Inspector of Police Paschal Kambona from Mbalizi Police Investigation Office took his turn to testify. In the course of his evidence in chief led by Mr. Basilius Namkambe, learned State Attorney, he adduced that he was tasked to investigate the murder of one Uswege Mwaigomole and that in doing so he visited the scene of the crime. As shown on page 114 of the record of appeal, he subsequently: "drew the sketch map of the scene of the crime and took the deceased to Mbeya Referral Hospital for medical examination. Before going to hospital, I filled PF. 99. I was the one who sent the body to the Hospital and I witnessed while the Doctor was making examination. The Doctor was Dr. Mbaga. The two relatives of the deceased were also there; they recognized the body of the deceased. " The witness adduced further that the said Dr. Mbaga issued a post-mortem examination report after the autopsy was completed and gave him a copy of it. But, when he proffered that report for

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Defence Counsel for the second and third respondents respectively, objected to its admission on the ground that it had been procured by the Police without the authorisation of a Coroner under section 10 of the Inquests Act, Cap. 24 RE 2002. It should be noted that Mr. Justinian Mushokorwa, learned Advocate for the first respondent, had no objection to the admission of the report. After hearing the contending submissions of the parties on the aforesaid objection, the High Court, in its ruling delivered on the following day (i.e., 17 th September 2015), sustained the objection as it held that the report was inadmissible because it was prepared and issued at the behest of the Police without the requisite direction or authorisation of a Coroner. In arriving at that decision, the High Court, at first, examined sections 10, 11 and 12 of Cap. 24 (supra). As shown on page 138 of the record of appeal, the court, then, "The provisions I have quoted above invite me to determine whether the Police Officer was right to request the Medical Doctor to conduct Post-Mortem Examination of the body of a person found 3

dead. The inquest Jaw is very clear on who is supposed to direct the medical practitioner to conduct the Post-Mortem Examination on a body of a dead person. The only person mentioned by this Jaw is coroner upon finding that there is need to do so. 11 Secondly, the High Court, having taken the view that the post~ mortem examination report was illegal on account of being procured without the requisite authorisation, considered whether the said report could still be admitted in evidence despite being anomalous, in the light of the provisions of sections 169 and 291 of Criminal Procedure Act, Cap. 20 RE 2002 as well as section 173 (1) of the Evidence Act, Cap. 6 RE 2002. The court took the view that the said report could still not be salvaged under said provisions for want of any plausible explanation why the autopsy was conducted without the requisite sanction of a Coroner (page 138 of the record). Aggrieved by the aforesaid ruling, the appellant preferred this appeal upon one ground of complaint as follows: "That the trial Judge erred both in law and _______ _____________________________ facts_ for failure to admit a _prosecution 4

,. exhibit to wit the Post-Mortem Examination Report." At the hearing before us, Mr. Joseph Pande, learned Principal State Attorney, appeared for the appellant while Mr. Victor Mkumbe and Mr. Issa Omari, learned Advocates, represented the respondents. Mr. Pande prefaced his submissions by noting that section 7 (1) (b) of Cap. 20 (supra) creates a duty on every person to report to the police "any sudden or unnatural death or death by violence or of any death under suspicious circumstances or of the body of any person being found dead without it being known how that person died." He further acknowledged that in terms of section 8 of the same law: "All inquiries into sudden deaths or other

• deaths- -Fepeltee- -&nder -sectien -7 shall- be carried out by such persons as are authorised under, and in such manner as is provided for by, the Inquests Act. " [Emphasis added.] The learned Principal State Attorney conceded fUJther that the~--- discretion or power to order or direct the conduct of a post-mortem 5 ·---------- -- --

examination is vested in a Coroner duly appointed under Cap. 24 (supra). Indeed, that power is stipulated by section 10 (1) of that law as follows: "10. (1) If for the purposes of the investigation of the circumstances of the death of any person the Coroner considers it necessary to obtain examination a medical report on the appearance of the body of that person and as to the conclusions to be drawn from _ that appearance; he may, subject to subsection (2), by an order in the form B prescribed in the Schedule to this Act,· require any Government medical practitioner within or without his jurisdiction or, in the absence

• of·such officer; -any other medicatpractitioner within his jurisdiction, to make an examination of the body and to report on it. " Addressing the post-mortem examination report that is the subject of this appeal, Mr. Pande admitted that the autopsy on the 6 ---------------------------- ------------------------------------·===--------- --- -=---=-----=----=----="======-========

deceased's body was conducted on the order or direction of the Police, meaning that the post-mortem examination report sought to be tendered in evidence was, therefore, prepared and issued without the authorisation or direction of a duly appointed Coroner. On that score, he said, the report is saddled with an irregularity. Yet, he faulted the High Court for rejecting that report, submitting that it should have been admitted in accordance with the provisions of section 169 of Cap. 20 (supra) and section 145 of Cap. 6 (supra) because it was in public interest so to do. While we note that section 145 of Cap. 6 (supra), empowers the trial court to consider and determine admissibility of any evidence based upon its relevancy, we think it is necessary, for ease of reference, that we reproduce the provisions of section 169 (1) and (2) of Cap. 20 (supra) as follows: "(1) Where, in any proceedings in a court in respect of ____ an offence,_ objection_ is taken ta.tbe admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, or of a failure to comply with a provision of this Act or any other law, in relation to a person, the court shall, in its absolute discretion, not admit the evidence unless it is, on the balance of probabilities, satisfied that the admission of the ---·-·-------- ·------- - __ -- ___ - __ --- ____ - __ -_- ___ - __ · _- __ - ___ ---,--c= ........ -· ··-----·-··-· -··-·· 7

evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom of any person. (2) The matters that a court may have regard to in deciding whethe0

in proceedings in respect of any offence/ it is satisfied as required by subsection (1) include- (a) the seriousness of the offence in the course of the investigation of which the provision was contravened, or was not complied with/ the urgency and difficulty of detecting the offender and the urgency or the need to preserve evidence of the fact; • (b) the nature and seriousness of the contravention or failure; and· (c) the extent to which the evidence that was obtained in contravention of, in consequence of (h~. F_C!_flra_v_(!n!!CJ_fl of, or ifl cq_nsequence Of th failure to comply with the provision of any la~ might have been lawfully obtained.// It was Mr. Pande's view that if the High Court had properly considered the seriousness of the offence with which the

• • • • ------ -respondents-stand--charged-as well-as the·insignificant-natare·of-the-- ----- - -- 8

infraction involved in procuring the impugned post-mortem examination report, it would have concluded that it was in the public interest that the said report be admitted in evidence. He observed that practically Coroners' Courts were non-existent and that it was difficult getting Coroners' orders for autopsy timely. That was apart from his awareness that Government Notice No. 71 of 1984 established Coroners' Courts countrywide and that · by virtue of Government Notices Nos. 147 and 148 of 1990 each District Magistrate in Charge of a district and each Resident Magistrate in Charge of a region respectively were designated as Coroners in their respective areas of jurisdiction. He concluded his submissions by imploring us to allow the appeal and order the impugned report to be admitted in evidence. Mr. Mkumbe's response on behalf of the respondents was quite in terms of section 196 (3) of Cap. 20 (supra) to satisfy the High Court that the objected report, despite having been obtained in contravention of or in consequence of the failure to comply with a provision of Cap. 20 (supra), should be admitted in the proceedings 9

in public interest. He particularly wondered why the Police failed to procure a Coroner's authorisation for the autopsy, which they could have qbtained from a Coroner at the District Court in Mbeya City located not far from the scene of the crime at Uhindini area. He thus urged us to dismiss the appeal in its entirety. In his very brief rejoinder, Mr. Pande urged us to look at all the provisions cited in whole and allow the appeal. For our part, we have dispassionately considered all the learned contending submissions. First and foremost, we acknowledge the correctness of the learned Principai · State Attorney's exposition of the law on the requirement by section 8 of Cap. 20 (supra) that all inquiries into sudden or unnatural deaths or deaths by violence or similar deaths be conducted by such persons as are authorised under, and in such manner as is provided for by, Cap. 24 (supra). The application of Cap. 24 (supra) to all such inquiries in particular implies that the procedure under section 10 of that law for conducting a post-mortem examination for the purpose of, among others, criminal investigations must be followed. Indeed,

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under the aforesaid section, the authority to order or direct the conduct of an autopsy lies with a Coroner. We recall that Mr. Pande conceded that the post-mortem examination report the subject of this appeal was irregular because the autopsy on the deceased's body was conducted without the authorization of a Coroner under Cap. 24 (supra). We ·have had the benefit of examining a copy of that report, which was availed to us after the hearing, as it was not part of the record of appeal. Indeed, that report indicates on its first page at the top that it was made on the authority of "Police Mbeya." We further recall that PW9 admitted in his evidence before he tendered it in evidence that he was the one who took the deceased's body to hospital and ordered the autopsy after filling out PF. 99. At this point, we wish to observe that based upon PW9's account, there is no doubt that the impugned post-mortem examination report was procured in accordance with the practice founded under the Police General Orders (PGOs). The PGOs are made by the Inspector-General of Police under powers vested in him --------·----·- --------------- ------· ------------·-- - -· ------ under section 7 (2) of the Police Force Auxiliary Services Act, Cap. 11 ----------~----=-===- ~---=--=---o-=- ==-= -----

322, RE 2002 and that they were promulgated for the first time in 1961. Relevant to our discussion is PGO No. 225, which deals with the handling of dead bodies. While Paragraph 7 of that PGO acknowledges that orders or directions for the conduct of autopsies would be issued by a duly appointed Coroner in accordance with Cap. 24 (supra), in Paragraph 8 it "empowers" the Officer in Charge of a Police Station to intervene in cases of emergency and direct an autopsy to be conducted. For the sake of clarity, we reproduce the said provisions as follows: ''In cases of emergency where it would be impracticable for the 0/C Station to secure a Coroner's order, the 0/C Station may exercise the authority conferred on a Coroner in Paragraph 7, above {P.F. 99). "[Emphasis added.] In his submissions, Mr. Pande acknowledged being aware of the above practice under PGO No. 225. Understandably, he avoided anchoring any argument on that practice in support of his appeal that the impugned report was validly issued. For in our view, it is apparent that the legality or lawfulness of Paragraph 8 of PGO No. 12

.. ,·• 225 is doubtful. It cannot be gainsaid that a discretionary power created and granted to a Coroner by a statute can be validly delegated to an Officer in Charge of a Police Station under subsidiary legislation made under a different piece of Principal Legislation. It is trite that any delegation of a statutory power or discretion must be made expressly by the statute that creates or confers that power. Given this position, we are constrained to find that the conduct of the autopsy on the deceased's body supposedly on the authority of the Police under Paragraph 8 of PGO No. 225 was obviously without the requisite authorisation of a Coroner. At this point, we think the issue of contention narrows down to the effect of the absence of the Coroner's authorisation to the admissibility of the report. We are mindful that the appellant contended before the High Court as well as before us that the 169 (1) and (2) of Cap. 20 (supra) on the ground that it was in public interest to do so in view of the seriousness of the offence the respondents stand charged with and the apparent insignificance of the contravention of section 10 of Cap. 24 (supra). Nonetheless, we think it is the provisions of section 291 of Cap. 20 (supra), which 13 ---··---------------~----

were also considered by the High Court, that are ultimately critical in determining the admissibility of the report. For easy reference, we reproduce the said provisions in whole as follows: "(1) In any trial before the High Courl any document purporting to be a report signed by a medical witness upon a purely medical or surgical matter, shall be receivable in evidence save that this subsection shall not apply unless reasonable notice of the intention to produce the document at the triat together with a copy of the document has been given to the accused or his advocate. {2} The court may presume that the signature to any such document is genuine and that the person signing it holds the office or had the qualifications which he professed to hold or to have when he signed it (3) Where the evidence- ls- received by the court the court may, if it thinks fit, and shall, if so requested by the accused or his advocate, summon and examine or make available for cross-examination, the person who made the report; and the court shall inform the accused of his right to require the person who made 14

the report to be summoned in accordance with the provisions of this subsection,, ( 4) Notwithstanding the provisions of subsection (3 J the court may dispense with the requirement of this subsection where it is satisfied that the person. who made the report is dead or that his attendance cannot be procured without undue delay or expense. " [Emphasis added.] We have deliberately supplied emphasis to part of the text of the above provisions to underline the following key points: first, the use of the word "shall" in subsection (1) of section 291 above connotes an imperative in terms of section 53 (2) of the Interpretation of Laws Act, Cap. 1 RE 2002. It means that any document purporting to be a report signed by a medical witness upon a purely medical or surgical matter shall be receivable in evidence subject to the requirement for furnishing to the accused reasonable notice of the intention to produce the document at the trial along with a copy of that document. Secondly, in terms of subsection (1) and (2) of section 291 above, questions as to the authenticity of the signature of the medical' witness appended to the ··· ··· ---···--aocument as· weir- as tfie witness' qua-lifications are matters of · --·······---- 15

evidence as opposed to the admissibility of the document. Thirdly, in terms of subsection (3), once the medical document is received in evidence the medical witness may be called by the Court if deemed necessary or shall be so called if required by the accused or his advocate for examination or cross-examination. While it seems that the purpose of calling the medical witness to appear for examination or cross-examination is partly for satisfying the .court as to the facts presumed under section 291 to be correct, it is clear to us that, in addition, the witness would be examined or cross-examined for the purpose of giving substantive evidence regarding the post-mortem examination that he or she conducted. That means, a post-mortem report is not of itself evidence unless the defence elects not to have the medical witness summoned. It is merely a convenient record of the medical practitioner's observations on the post-mortem to which ~e may refer "Yhile giytng ~vide_nce in order _to refres_b his rnem.ory. Thus, when the medical practitioner appears in court, it is his oral testimony as opposed to the post-mortem examination report exhibited in court that becomes substantive evidence on the questions as to the deceased's body. In this regard, we wish to refer to the position taken in Ganpat Raoji v State of Maharashtra, 16

the Division Bench of the Bombay High Court [1980] CriLJ 853, which we find persuasive: "It is well-settled that the memorandum of the post" mortem examination is not a substantive evidence by itself. It is a document containing the notes made by a doctor contemporaneously while he is conducting the post mortem examination. That memorandum can be used by the doctor for refreshing his memory while he is giving evidence in Court. It may be used by the defence, if necessary, for contradicting the doctor's evidence in the Court. The memorandum itself can never be substantive evidence though it can be exhibited in the Court when the doctor is examined as a witness and has deposed to the contents of that -document.,,_ Looking @t the section 291 of Cap. 20 (supra) within the scope and context we have described above, we think it is a self-contained provision on admissibility of medical evidence. On this reasoning, we are disindined to accept that the absence of a Coroner's authority 17

for the conduct of an autopsy would vitiate the ensuing post-mortem examination report and render the testimony of a medical witness inadmissible or worthless. By way of emphasis, we do not see any basis upon which the medical expert's findings from a post-mortem examination, as documented in the report or testified in court, would be rubbished due to the procedural infraction of failing to seek and obtain a Coroner's authority. Most significantly, we think that the admission of such report (and the medical witness' testimony) will not prejudice the accused against whom the report or testimony is presented. That the defence will have recourse to cross-examining the witness on all aspects of the autopsy in terms of section 291 (3) of Cap. 20 (supra) assures of improbability of prejudice against the accused. In sum, we are of the view that the impugned post-mortem examination report is admissible ·· in evidence · purslrant ·· to the provisions of section 291 of Cap. 20 (supra), the absence of the Coroner's authorisation for the autopsy notwithstanding. In the result, we find merit in the ground of appeal. We thus allow the order, which sustained the respondents' objection against the 18

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admission of the post-mortem examination report. Furthermore, we order that the record be remitted back to the High Court for it to continue with trial from where it ended. It is so ordered. DATED at MBEYA this 13 th day of October, 2017. K. M. MUSSA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true co of the original. EGISTRAR RT OF APPEAL 19 ---------·-·-----------·-- ·-~