Faraja Leserian vs Republic (Criminal Appeal No. 203 of 2012) [2014] TZCA 2241 (10 September 2014)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KILEO, l.A., ORIYO, J.A., And MMILLA, l.A.) CRIMINAL APPEAL NO. 203 OF 2012 FARAJA LESERIAN .................................... ···································APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) (Bwana, J.) Dated the 5 th day of February, 2008 in _ s th & 11 th September, 2014 ORIYO, J.A.: Criminal Appeal No. 133 of 2008 JUDGMENT OF THE COURT The appellant· Faraji Leserian, was charged with and convicted of an unnatural offence, contrary to section 154 (1) (a) of the Penal Code. It was alleged that on the 4 th of July; 2005, at about 13 hours at Ilboru area within the city of Arusha, the appellant had unlawful carnal knowledge of one Charles Oswald, a boy of the apparent age of five (5) years against the order of nature. Upon conviction the appellant was sentenced to life imprisonment. His appeal to the High Court was dismissed. The appellant is presently seeking to impugn the decisions of the two courts below. 1

The brief facts which led to the prosecution of the appellant came from a total of six (6) prosecution witnesses. Apparently, the victim of unnatural offence, PW3, was residing with his parents in the same compound as th_~ _appellant. On the material date, PW 4, Maria Gidion, who was the mother of the victim asked the appellant to buy some vegetables for her in the company of the victim who was to bring back the vegetables. Neither came back timely, and when the appellant belatedly returned, PW3 was not with him. PW4 was prompted to ask PWl, Kisanga . . . . . . . Gideon, to follow up on the whereabouts of the victim. On his way out, PWl met the appellant alone. When asked as to where PW3 was, the appellant told PWl that he left him behind playing with other children. PWl subsequently found the victim alone, crying, while carrying a bag of vegetables. Back home, the incident was related to PW4 who asked the victim why he was crying. The latter said that his buttocks were hurting, which prompted PW4 to examine her son. She found the victim dirty and blood stained. She reported the matter to police where she was given PF3 and took the victim to the hospital, where the victim was examined and treated by a doctor who filled the PF3 which was later admitted in court as Exhibit "Pl". 2

In his brief testimony, the appellant completely disassociated himse_lf from the prosecution allegations. His contention was that there was a grudge on a land dispute· between him and the victim's father who threatened to fix him, hence the allegations of sodomy. The appellant had nine (9) complaints listed in his Memorandum of Appeal, challenging the first appellate court for upholding his conviction and sentence. We have decided to reproduce all the grounds of appeal hereunder for reasons to be apparent shortly. They were listed as follows: 11

1. Thal the first appellate Judge erred in law and in fact for not making (sic) finding that the evidence to ·support the prosecution case was not properly analyzed. The evidence of PWJ wrongly accepted because there was no --·. , .. compliance with section 127 (2) of the law of the Evidence Ac( (Cap. 6 R.E. 2002). PWJ was chtld witness of 5 years old. The (sic) required the trial magistrate to: conduct· a voire dire examination" in order to ascertain whether the witness know the meaning of an oath and his capacity to testify. 3

cl The trial magistrate did not conduct the examination properly as the questions the trial Court · put to PW3 were not reflected on the record. (See page 14 of the Court. records) 2. That, this case was poorly Conducted. The trial Court recorded the evidence by way of questions and answers from that was not proper. The manner of recording evidence before a magistrate is provided under section 210 (1) (b) of the CPA Cap.20 R.E,2002. 3. That, the trial magistrate denied the appellant his right to cross examine PWl, (see page 9 of the Court records.) 4. :: fhaf 'fhe '/itst ·appell~te')udge· erred in law and in fact when he failed to scrutinize the evidence of PWJ and PW4 and exhibit, Pl and hence he arrived on an erroneous decision. 5. that, . the trial of the case was not held in CAMERA as required by law. 6. That, the first appellate .Judge erred· in law and in fact by not finding that the Appellant's cautioned statement was taken outside the basic· period stipulated under section 50 of the CPA Cap 20 r.e. 2002. The evidence on .4 r

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record shows that the appellant was arrested 9n . ·. 91/07/2()05 .. while.· the cautioned • :'" • ~- I ,:,': • • statement was taken 06/07/2005. There is no proof in the presen (sic) case that the period available for interviewing the appellant beyond the period provided under section 50 was ever lawfully extended by law provided. 7. That the prosecution claimed that the victim was a child of tender age but could not produce a birth certificate to prove its(sic) /his age. 8. That the charge sheet was defective. 9. That the trial magistrate and the appellate Judge ·erredih law and in fac{ by·not ' ' Complying with section 312 (2) of the CPA Cap 20 R.E 2002. '' Before us, the appellant appeared in person without legal . . . ·• representation. The respondent Republic was represented by Ms. Sabina Silayo, learned State Attorney. We asked the learned State Attorney to submit first as the appellant had made a prayer to that effect. s·

.I In her submissions Ms. Silayo opted to argue the grounds of appeal in· two groups. She ··argued grounds 3, 5, 8 and 9 singly while the remaining. grounds '1; 2, ·4; 6;. arid 7 were. disposed of tog·ether. Initially, the learned State Attorney supported the appeal but subsequently, in answer to issues raised by the Court, she changed her :position and supported the conviction and sentence. Starting with ground three of appeal, the learned State Attorney stated that it is not true that the appellant was denied the right to cross- examine PWl. Ms. Silayo further stated that she had an opportunity to v~rify the position from th.e original trial court record which confirmed that the accused was given an opportunity on 29/08/2005 to cross-examine PWl, which he did. Our perusal of the original trial court record, it supports the position stated by the learned State Attorney. Apparently, the trial court did not record the questions put to PWl by the appellant, but the answers recorded were as hereunder: "- You told me you left Charles with other chHdren.

• I found him lying on the ground crying. 6

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• I left you at your home you were closing the gate. ✓, We therefore agree· w1th··the learned State Attorney that ground three has no merit and is dismissed. On the complaint in ground five of appeal that the trial was not held in camera, the learned State Attorney submitted that this ground has no basis because the appellant did not state how he was prejudiced by the omission. The appellant's complaint in ground 5 essentially is that the trial court erred by not complying with the mandatory provisions of section 186 (3) of the Criminal Procedure Act as amended by Act No. 4 of 1998, (SOSPA). . . . The essence of the complaint is that the proceedings in this sexual offence should have been conducted in camera. Subsection (3) of Section 186 provides: "(3) Notwithstanding the provisions of any other la~ the evidence of all persons in all trials involving sexual offences shall be received by the court·in-·camera/ and the evidence· and witn~~s involved in these proceedings shall not be 7

published by or in any newspaper or other media/ but this subsection shall not prohibit the printing or publishing of any such matter in a bona fide series of law reports or in a newspaper or periodical of a technical character bona fide intended for circulation among members of the · legal or medical professions. " The above provision imposes a mandatory obligation on courts of law to receive in camera, the evidence in all trials involving sexual offences. The trial District Court of Arusha did not comply with this mandatory provision having_ conducted the trial and received the evidence in an open court. However the error/omission/irregularity, if any, occasioned to any party is curable under section 388 (1) of the Criminal Procedure Act. And as correctly submitted by the learned State Attorney, the appellant, who testified as DWl, failed to show how he was prejudiced by the omission to receive the evidence in camera; See the Court's decision in the case of Godlove Azael @ Mbise vs Republic, Criminal Appeal No. 312 of 2007, (Unreported). In similar circumstances, the Court stated: 8

1,/ ''In what way was the appellant prejudiced under section 186 (3) of the CPA. Even at the late stage when he made his defence as DWl, he did not protest that since he was charged with sexual offence, his evidence should be received in camera., ✓ We find no merit in this ground of appeal and we dismiss it. As . .for. the .c,omplaint in grond 8 of .appeal that the charge sheet was defective, in relation to the name of the victim as Charles Oswald while he testified as Charles Denis, the learned State Attorney submitted that as this complaint was not raised in the courts below, it cannot be raised on·a second appeal. The submission by the learned State Attorney finds support from the Record before us. Throughout the trial, th appelJant :W~o resided in the . . .·. .. . . . ' ... same compound with PW3, did not raise the issue on the actual name of PW3. This is merely an afterthought and in any· event, the name of the appellant did not prejudice his case as he knew PW3 from before the incident. This ground is devoid of merit. It is dismissed. 9

Reacting to ground nine of appeal that both courts below did not comply with section 312 (2) of the Criminal Procedure Act, Ms. Silayo stated that both judgments fully complied with the dictates of the relevant law. Section 312 (2) of the Criminal Procedure Act provides: ''In the· case of conviction the Judgment shall specify the offence of which, and the section of the Penal Code or other law under which the accused person is convicted and the punishment to which he is sentenced." . (Emphasis ours) To us this ground of appeal appears superfluous. When reading the trial court's judgment found at pages 24 to 27 of the record, at page 27, of the trial part of the tria·i court judgment stated: ''I therefore find accused person guilty of the same. H And at page 25 it is stated: 10

..} "Faraja is ·now charged with unnatural offence c/s : .. ;:. . . •·~ ,. . '. ' ' 154 (1) (a) of the Penal Code as amended by section 16 (1) and (2) of Act No. 4 of 1998. I/ It is clear that section 312 (2) above was duly complied with. Ground 9 of the appeal is dismissed for want of merit. Moving on to the remaining grounds 1, 2, 4, 6 and 7 of appeal, the learned State Attorney laid her first attack on the testimony of PW3. She submitted that the evidence of PW3 was wrongly admitted and acted upon without full compliance with section 127 (2) o_f the. Law of-Evidence Act. She stated that PW3, being a child witness of 5 years of age, it is a legal requirement, in terms of section 127 (2), for the trial court to conduct a "voire dire" examination to ascertain whether the witness knew the meaning of an oath and his capacity to testify. She stated that the trial court did not conduct the voire dire examination properly as the questions put to PW3 by the trial court were not reflected on the record. Further, it was her view that it was difficult to ascertain from the answers recorded during the voire dire examination that the child witness knew the meaning of an oath and the duty to speak the truth. It was, on account of this, that the learned State Attorney submitted that the unsworn evidence 11

•' of PW3 needed corroboration which, according to her, was missing and her testimony should not have been received in evidence. . ·. The next piece of prosecution testimony attacked by the learned State Attorney was the medical evidence, (PF3), which was admitted as Exhibit "Pl". She urged us to expunge it from the record, it having been admitted unprocedurally contrary to section 240 (3) of the Criminal Procedure Act. She contended that in the event the medical evidence is expunged, the only evidence remaining to support conviction was the cautioned statement which, was taken out of time, in terms of section 50 of the Criminal Procedure Act. She prayed that the cautioned statement be expunged from the record as well: In response to the submissions by the learned State Attorney, on ' . . grounds 1,2,4,6 and 7, the appellant's main contention was that the offence of unnatural offence was not proved beyond doubt as required by the relevant laws. He specifically singled out the alleged evidence on the . - age of the victim to be five years, which to him was lacking. Indeed, it is uncontroverted that, understandably, the victim stated in examination in chief that he did not know his age and he was not 12

V ·schooling. Neither did PW2, his father nor PW4, his mother testified on the age of their son .. --However, upon careful reading of the testimony of PWl, th_e victim's· cousin, who wa·s 10 years old on· the day he testified on 29 th August, 2005, he stated the age of the victim as being younger than . . . himself. At page 10 of the retard, PWl, partly stated under oath the following: 11 I school at llboru Std Ill

• Charles is my uncle.
• He is younger.
• He is not schooling.... " When the appellant was cross-examining PWl (supra), the issue on the age of the victim was not raised at all. Therefo.re, it was undisputed that the age 'of PW3 wa·s below 'ten ( 10) years. The complaint on the age of PW3 is accordingly dismissed. I• ,! .. As we have already stated, both courts below were fully satisfied that the case for the prosecution was proved beyond doubts. Admittedly, we agree with the learned State Attorney that the prosecution evidence has some shortcomings. We begin with the evidence of PW3 and the voire dire examination. The record of appeal supports 13

I ... •' the complaint that the trial court did. not record the questions put to PW3. Unfortunately this ground was raised for the first time in a second appeal which was not proper: ·see the Court's decisions in the cases of Luziro Sichone and Another vs Republic, Criminal Appeal No. 131 of 2010; Selemani Rashid @ Daha vs Republic, Criminal Appeal No. 190 of 2010; Bihani Nyankongo and Another vs Republic, Criminal Appeal No. 182 of 2010, (all unreported), among others. However, in our view, the mere omission by the trial court to record the questions put across to PW3 did not vitiate the voire dire examination. Some of the answers given by PW3 during voire dire .... , .. included the following: 1 '1 am a Christian. I do not go to church. I have no clothes. I know lying is bad/ it is a sin. I Just know it. I don't know what an oath is. " Thereafter the court stated the following in compliance with section 127 (7) of the Evidence Act: 14

"The witness is intelligent enough to understand the obligation to tell the truth. He does not understand the nature of· an oath. He tenders unsworn evidence. "(Emphasis ours) In view of the foregoing, with respect to Ms. Silayo, we do not agree with her submission that the voire dire examination was problematic and the evidence of PW3 was wrongly admitted in evidence. On our part, notwithstanding the minor shortcomings, we hold that a voire dire examination was properly conducted and the unsworn evidence of PW3 was duly admitted as corroborated by PW1 and PW4, in terms of section 127 (2) and 127 (7) of the Evidence Act. Regarding the .medical evidence, (Exhibit "Pl"), it is uncontroverted that the appellant was not informed of his right to have the medical doctor summoned for cross-examination. At the trial court, the medical evidence was tendered by PW4. This was contrary to the clear provisions of section 240 (3) of the Criminal Procedure Act. This renders the medical evidence in Exhibit "Pl" illegal, for having been admitted without compliance with 15

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• the law. The omission to inform the appellant of his rights is fatal; see Court's decision in the cases of Juma Masudi @_ Defao vs Republic, ' Criminal Appeal No. 164 of 2005 and Joseph Leko vs Republic, Criminal Appeal No. 124 of 2013 (both unreported). Exhibit "Pl" was illegally received and admitted in evidence and consequently, we discount the medical evidence in PF3. Similarly, for the cautioned statement of the appellant which was admitted at the trial as Exhibit "P2", was indeed taken out of the prescribed period of four hours after arrest. The appellant was arrested on the 4 th of July, 2005 and on the 6 th of July, PW6, D7405 A/CPL Mseru recorded his statement, which was done beyond the legal time prescribed in ter~s of section 50 (1) (a) of the Criminal Procedure Act, thus we expunge it from the record. Notwithstanding the discounting of the medical evidence, and the cautioned statement, the prosecution case was not defeated. The remaining testimonies adequately suffice to sustain the conviction entered . . and the sentence imposed. 16

',/ 4 },.,, ,,., ,, I ~ ( -__ .,- In the result, we find the appeal lacking in merit and it is dismissed in its entirety. DATED at ARUSHA this 10 th day of September, 2014. E. A. KILEO JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL B. M. K. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. E. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL .17