Yasini s/o Mwakapala vs Republic (Criminal Appeal No. 604 of 2015) [2017] TZCA 1009 (12 October 2017)

' j I• IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUSSA, J.A., MWANGESI, J.A., And NDIKA, J.A.) CRIMINAL APPEAL NO. 604 OF 2015 YASIN! S/0 MWAKAPALA ... ., .................................................... APPELLANT VERSUS THE REPUBLIC n••• ■ 111111111 ■ 111 ■ 111t ■■■■■■■ llll ■■ l ■ ll ■ 111111111111111111111 ■ 11 ■ 1111111:1 ■■■■ 11111 ■ RESPONDENT {Appeal from the judgment of the High Court of Tanzania at Mbeya) (Chocha..Lh) dated the 13 th day of July, 2015 in DC Criminai Appeal No, 13 of 2012 JUDGMENT OF THE COURT 10 th & 13 th October 2017 The appellant was, before tlie~:bistrict Court-of Kyela at Kyela, charged with and convicted of the offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16 RE 2002. as · · amended by Act No. 4 of 2004. His first appeal to the High Court of Tanzania sitting at Mbeya was dismissed in its entirety. Still discontented, he has preferred this second appeal based upon nine grounds of complaint. 1

• The evidence adduced at the trial, as summarised so concisely by the first appellate court, was as follows: PWl Agnes Fredy and PWS Alisia Charles were bartenders at Mexico Bar in Kyela downtown. On the material day, they closed business at the bar at 23.45 hours and then lelt together for their respective homes. While on the way, the appellant surfaced and greeted them. He then shouted to PWl, "Achia mkoba", meaning, "Surrender your handbag." The appellant quelled PWl's initial resistance by punching . her on her face with his fist. At the same time, he drew a knife from -- .. ·-.. . - his pocket and threatened to use it on PWl. In the circumstances, PWl relented and so the appellant grabbed· her handbag containing TZS. 70,000.00 in cash as well as an assortment of personal possessions and then fled the scene of the crime. Immediately threafter, PWl and PWS\vent to· a nea·rby - poii~~--: post where they -· -·· .repxted the robbery and- mentioned the appellant to PW3 No. · G.4658 PC Emmanuel aslhe culprit. That very night PWl went to the District Hospital at Kyela for treatment after the police had

• . issued her a medical examination form (PF.3). 2

Both PWl and PWS adduced in their respective testimonies that the appellant was a usual customer at their bar and that they knew him very well before the fateful evening. Although PWl did not say in her evidence in chief as to how he identified or recognized the appellant as the assailant, she shortly stated, when questioned by the trial court, that she identified him with the aid of a tube light that illuminated the area. PWS, on her part, was a little more elaborate. She said a tube light illuminated the scene of the crime from a nearby shop, about ten metres away. PW2 Mr. Sekiete Saddy Mtema,- a Medical Doctor at the District -· Hospital at Kyale, confirmed to have attended PWl that fateful night. ) He tendered a PF.3 (Exhibit P.1), indicating that PWl suffered a "swollen bottom part of the eye" caused by a blunt object. PW3

confirmed PWl and PWS's account on the matter being reported to the police and handled thereafter culminating with the arrest of the appellant. PW4 No. E.2782 D/Cpl Rogers 1 who investigated the matter, told the trial court that he interviewed the appellant and recorded his cautioned statement (Exhibit P.2) on 2 nd March 2011 at 3 ¼'. ·1

2.20 p.m. In that statement, the appellant confessed to have committed armed robbery on PWl. In his sworn testimony, the appellant denied the charge against him. Apart from claiming that he was surprised when he was arrested on 1 st March 2011 without being informed of the cause for the arrest, he said that he signed the cautioned statement upon being ordered to do so without knowing its contents. He also challenged the testimonies of PWl, PW3, PW4 and PWS, asserting that they were riddled with lies especially regarding his alleged identification at the scene of the crime and the voluntariness of the confessional statement. In the end, the trial court believed the evidence of PW1 and )t~: · -·- PWS that the · appellant was> the one who_ robbed PW1 of her ·St handbag and that he threatened to use the knife on PWl so as to obtain the handbag. On that evidence, the court found that- the appellant was positively identified. In addition, the court accepted the confessional statement (Exhibit P.2) and relied upon it against the appellant. That the appellant applied violence on PWl was further supported by PW2's evidence and the PF (Exhibit P.l). 4

As stated earlier, the High Court dismissed the appellant's first appeal in its entirety for lacking merit. The Court did so as it upheld all key findings of the trial court. Nonetheless, the Court found, rightly so in our view, that the cautioned statement was recorded beyond the statutory period of eight hours allowed under the law, which was a clear violation of section 51 (1) (b) of the Criminal Procedure Act, Cap. 20 RE 2002. Accordingly, the learned appellate Judge expunged that document from the record. At the hearing of this appeal, the appellant appeared in person while Mr. Francis Rogers, learned State -Att9rney, represented the respondent/Republic.· --- Understandably, the appellant, being a layperson, opted to hear the respondent's address on the - appeal· -- ·/: · · -· first and reserved his right to rejoin .. Mr. Rogers did not support the appellant's conviction and sentence solely on basis of the seventh grouna of appeal, which, in his view, had merit. It is a complaint to the effect that the - lower courts based the appellant's conviction upon the prosecution evidence and disregarded his defence. 5

In his argument, Mr. Rogers acknowledged that the trial court did not consider the defence case in any serious way other than by making a cursory glance of it as revealed on page 31 of the record of appeal. He argued further that the High Court fell into the same error. Despite having the mandate, as a first appellate court, to re- examine the whole evidence adduced at the trial and make its own findings, the Court, too, made a fleeting look at the evidence and ignored the appellant's defence. To illustrate his point, he made reference to page 67 of the record. Citing the unreported decisions of this Court in Abel Masikiti v Republic, Criminal Appeal No. 24 of 2015 _and Prince Charles Junior v Republic, Criminal Appeal No. 250 of 2014, the learned State - Attorney was of the view that the aforesaid omission was incurable and that it rendered the appellant's trial unfair. He urged us to allow the appeal solely on that ground. He further advised-us . . -- to exercise our revisional powers and nul_lify the lower courts' proceedings and judgments resulting in the quashing and setting aside of the appellant's conviction and the corresponding sentence. 6 ........ _ .. ... -. , ... ."". '"!· .... i....~i-.

Nonetheless, he pressed that the appellant be retried on the ground that the prosecution case was founded on solid evidence. In his reply, the appellant had nothing useful to say other than supporting Mr. Rogers' position with a rider that no retrial should be ordered against him as he has been in prison for a long time. In the light of the submissions of the parties, we examined the judgr:nents of the lower courts. Looking at the eleven·-page judgment of the trial court, as shown on pages 23 through 34 of the record of appeal, we note that the trial court devoted the first seven pages to ,,- -,·:;i:f/. ·

• a summary of the charges against the appellant; the prosecution ·" :r:):,;'.\ 0 · case and defence evidence. The rest of the pages (i.e., four pages) · .. '/,fi~ 1 ;': · ::" were utilized in analyzing the prosecution evidence and answering ,,, - -:.;,,\ltt: ·-· three issues that the court framed for determination, whose essence 'J' _was the question whether the appellant was the armed robber that
• stole PWl's handbag. After revisiting the prosecution evidence, the court resummarised the defence case on page 31 without any attempt to evaluate its weight or probative value. We reproduce from the record the relevant part as follows: 7

'1n brief; the accused person (DWl) has denied the truth of the evidence given by the prosecution side vehemently. The aim of the court was not to shift the burden of proof to him/ but only to raise reasonable doubt. From what was said by the accused person,, I can further say the court did not expect the accused person to prove his innocence. // Thereafter, the trial court reverted to the prosecution ca~e, concluded that the perpetrator of the armed robbery was the appellant and convicted him of that offence. In our view, the trial court's conclusion ·was vividly injudicious- and erroneous. It ignored completely the defence case. The_ court did not subject the defence . · ____ ·,:.-:-:';.>:,-_ - evidence to any evaluation to determine its credibility and cogency. :;ifL":'.c · In this regard, we find it imperative to recall that in Leonard Mwanashoka Criminal Appeal No. 22? of 2014 (unreported), cited in both Abel Masikiti (supra) and Prince ChJ:irles Junior (supra); the Court warned that considering the defence was not about summarising it because: ''It is one thing to summarise the evidence for both sides separately and another thing to subject the entire evidence to an objective 8

evaluation in order to separate the chaff from the grain. It is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis. // As rightly submitted by Mr. Rogers, the High Court too fell into the same error despite having the mandate, as a first appellate court, to re-examine the whole evidence on the record and make its -own fintjings. Indeed, as shown on page 67 of the record of appeal the learned appellate Judge was simply dismissive of the defence . :~;:t: '!-'W\ evidence without subjecting it to any' objective scrutiny. We reproduce the relevant part of the record as follows: "Reading closely the appellant's defence, although he does not expressly say it, he is distancing himself from being at - - the,.-scene. The proposition cannot be accepted._ As :,aicl the appellant does not deny being the two ladies' good custome0

for which they have never been involved in any confrontation. There was therefore no reason why they would fabricate a story against him. I find the appellant 9

• . .- .. ; .- _., 1> -· - ::-· committed the offence he stood charged with. Conviction was unavoidable.// [Emphasis added.] It was on the basis of the cursory analysis of the defence case reproduced above that the Court confirmed the appellant's conviction and the corresponding sentence. That was it. We think we should echo what the Court held in Prince Charles Junior (supra): "With due respect this is not ho a first appellate Court should have dealt with such a cornplaint. As directed in PANDYA~ case (supra) in a first appeal the first appellate court should have treated the evidence as· a whole to a fresh and exhaustive scrutiny which the appellant was entitled to expect. It was therefore :expe_cted of tire first appellate Cou~ to not only-summarise:butatso· to objectively evaluate the gistand value of the defence evidence,--and- weigh it against the prosecutio;r-case.-- This is what evaluation is all about. (See LEONARD MWANASHOKA v REPUBLIC Criminal Appeal No. 226 of 2014 (unreported)).// [Emphasis added] The Court went on to hold that: 10 ... , '"'-; - ;_ - f ~ 1 .):· e·· ,-'.---~

''In PANDYA s case it was held that in affirming a conviction based on evidence which had not been reviewe~ the first appellate court erred in la~ and the conviction was found to be unsafe. In HUSSEIN IDD & ANOTHER v R [1986] TLR 283/ it was held that failure to consider the defence case was so serious a misdirection that a conviction would not be safe. /r[Emphasis added] Reverting to Leonard Mwanashoka (supra-) that we referred to earlier, the Court had held that: "t;Ve have read carefully the Judgment of the trial court and we are satisfied that the

• .. appellants complaint was and still is well
• . . _- . - -- - ,-· taken. The -appellant's defence was not considered at all by the trial court iri the evaluation i;f -the -·- evidence~ which -we - take to be the most crucialstage )n Judgment writing. Failure :--to evaluate or -ari ")iriproper

---

evaluation of the evidence inevitably leads to · wrong and/or biased conclusions · or inferences resulting in miscarriages of justice. It is unfortunate that the first appellate judge fell into the same error and did 11

not re-evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too. It is universally established Jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction.// [Emphasis added] The Court's stance in Leonard Mwanashoka (supra) was based upon six decisions cited therein: Lockhart Smith v Republic [1965] EA 211 by the High Court (Weston, J.); Okoth Okale v -- Uganda [1965] EA 555; Elias Steven v Republic [1982] TLR 313; :>·:,1'./'; .~ Hussein Idd & Another v Republic [1986] TLR 283; Luhemeja . - - \Z:\ Buswelu -v Republic, Criminal Appeal No. 164 of 2012 (Unreported); and Venance Nkuba & .Another v Republic, Criminal Appeal No. 425-of 2013.(unreported}. We are conscious thatJn the two decisions cited to us by Mr.

• - Rogers (Abel Masikiti (supra) and· Prince Charles Junior (supra)), the Court, having held that the lower courts failed to properly consider the defence case, found the respective convictions unsafe and proceeded to allow the appeals. (See also Leonard Mwanashoka (supra) and Hussein Idd & Another v Republic 12

[1986] TLR 166). Given the circumstances of this appeal, that we find merit in the appellant's seventh ground of complaint that the lower courts disregarded his defence, we find no basis to take a course different from that taken in the above-cited decisions. Accordingly, we allow the appeal, quash the conviction and set aside the sentence. As a result, we order that the appellant be released from prison forthwith, unless he is otherwise lawfully held. DATED at MBEYA this lih day of October, 2017. ·_____ - \ ~ ; \ · \ -·- - _-- - · \ ' ..• 5:/ ,, ,1-0- .. ~ . ---- KM. MUSSA JUSTICE OF APPEAL _ S. S. MWANGESI JUSTICE OF APPEAL G. A. M. NDIKA _ JUSTICE OF APPEAL

I certify that this is a- true copy of the original. ··~ E,.,,,y,,.,MKWIZU_/ - - /,.,-:,,...,-- _/- DEPUTY REGISTRAR ~6uRf-oF APPEAL ~- 13