Jerard s/o Ndarusanze vs Republic (Criminal Appeal No. 181 of 2014) [2014] TZCA 2168 (27 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MBAROUK, J.A.. MASSATI. J.A.. And MUSSA. J.A.^ CRIMINAL APPEAL NO. 181 OF 2014 JERARD S/O NDARUSANZE ............................................. APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Kibondo) (Mruma, Dated the 5th day of March, 2014 in Criminal Appeal No. 130 of 2007 JUDGMENT OF THE COURT 25th & 27th June, 2014 MASSATI. J.A.: The appellant was charged with and convicted of murder. Before the High Court of Tanzania, sitting at Kibondo, it was alleged that on the 11th day of September, 2005, at Songambele Village, in Kasulu District, Kigoma Region, the appellant murdered one LEONSIA d/o YAKOBO. He protested his innocence. After a full trial consisting of three prosecution witnesses, and two defence witnesses, it was established that the deceased was the appellant's wife and they were living in their matrimonial home at Songambele Village. PW1 KATULA TAMA NDARUSANZE, who was the appellant's younger brother, started to notice a strange behaviour by the

appellant on the morning of 9/9/2005. He decided that he be taken to hospital. So he sent for their elder brother FAUSTIN TAMA who arrived the next day. While waiting for some other people to assist in handling the appellant, PW1 heard some people shouting from the appellant's home. He and others, rushed there only to find the deceased lying down with a head injury and the appellant in a confused condition. The deceased was taken to the police and then to the hospital where she later succumbed to death that same evening. The autopsy conducted on her body (Exhibit PI) disclosed the cause of death as due to head injury. The appellant was arrested and subsequently charged with the offence. Apart from PW1, PW2 E 8212 D/CPL NAGABONA, was assigned to investigate the case and collect evidence. But PW3 ASS. INSP MARCO, took the appellant's cautioned statement ( Exh P3). Sometime before the trial, at the request of the defence, the appellant was sent to Isanga Institution for it to examine his mental status. The Institution's Report was admitted in court as Exh P2. In his defence, the appellant, who gave evidence on oath, said that on the night before, he had smoked cannabis sativa (bhang) and did not remember what he used to hit her with, because he was confused. He,

however, accepted responsibility for killing her. His witness DW2, LEMANSION NYANDUDYE BALI HA, told the trial court that on the morning of 11.9.2005, the deceased went to his house to inform him that her husband was sick. He went there and found the appellant confused, and unsettled. He and other members of the appellant's family agreed to take him to hospital. But before they could do that, he heard that he had hit his wife to death. DW2, volunteered an opinion that the appellant didn't intend to kill his wife. The appellant's defence in court was therefore that of insanity. But in his cautioned statement (Exhbit P3) which was part of the prosecution case, the appellant said that he hit the deceased with a pestle on the head because she had slept outside the matrimonial home the previous night. This was a defence of provocation. On the basis of this evidence, the trial court dismissed both of the appellant's defences and convicted him of murder as charged and sentenced him to the only permissible penalty; death. The appellant is now before this Court to challenge the decision of the High Court. 3

Before this Court, the appellant is represented by Mr. Kamaliza Kayaga, learned counsel, who filed a two - ground memorandum of appeal. The grounds are:-

1. That, the Honourable tria l Judge w rongly analysed and evaluated the evidence on record on the issue o f insanity and came to the wrong conclusion that the appellant was sane a t the tim e he com m itted the offence.
2. That the learned tria l Judge did not address him self and to the assessors on the issue o f provocation raised in the appellant's cautioned statem ent tendered and adm itted as Exh P3. Elaborating on each of the grounds, Mr. Kayaga submitted as follows. Despite the evidence of PW1, PW2,PW3, and Exhibits P2 and P3 the trial court ignored the clear signs of insanity exhibited by the appellant as shown in the testimony of PW1, and DW2 and instead relied on Exh P2 to find that the appellant was sane at the time of commission of the offence. This was a wrong evaluation of the evidence, in view of the real situation

on the ground, (in the testimony of PW1) and the principle that the trial court was not bound by the medical opinion in Exh P2, which was not properly admitted in evidence anyway. He referred us to the decision of AGNES DORIS LIUNDI V R. (1980) TLR.46. On the second ground of appeal, Mr, Kayaga pointed out that the trial Judge did not address himself or the assessors on the issue of provocation which was raised in the appellant's cautioned statement (Exh P3). The omission was fatal to the conviction, he argued, relying on KATEMI NDIKA V R. (1992) TLR. 297. He therefore urged us to allow the appeal. The respondent/Republic was represented by Mr. Rwegira Deusdedit, learned State Attorney, who at first, resisted the appeal, but on reflection, decided to support it. He readily agreed that Exh P2 was improperly introduced into evidence, and without the medical report, there was clear evidence on record to suggest that the appellant might have been insane at the time of committing the offence. He submitted that this would have been the finding if the trial court had properly evaluated the evidence. So, he agreed with the first ground of appeal, and did not go into the second one. He was of the further view however that, should the Court enter a verdict of manslaughter, it should, in assessing a proper sentence, consider the period that the appellant has served in jail so far.

In his reply submission, Mr. Kayaga reiterated his earlier arguments, that the prosecution case did not establish malice aforethought beyond reasonable doubt and so urged us to allow the appeal. This is a first appeal. As such the Court can, and has a duty to reevaluate the evidence on record and come to its own conclusions. (See PANDYA Vs R. (1957) EA 336, WILLIAMSON DIAMONDS LTD Vs BROWN (1970) EA 1; AHMAD HASSAN MARWA VS R., Criminal Appeal No 264 of 2005 (Unreported). We therefore first intend to take a second look at the evidence on record and in so doing we shall be tackling the first ground of appeal. As hinted above the prosecution case composed of three prosecution witnesses, and three exhibits, whereas the defence paraded two witnesses. The most important prosecution witness is PW1, the appellant's brother. In essence, his evidence was to the effect that on the material morning the appellant was found to be in a confused state of mind and his people were in the process of taking him to hospital before it was reported that he had killed his wife. This is supported by the appellant's witness, DW2, who also told the trial court that the appellant appeared confused when he visited him after his wife had sent for him. PW2 and PW3 were mere formal

witnesses. Exhibit P2 was a report from Isanga Institution detailing the mental condition of the appellant at the time of committing the offence. Its admissibility is problematic. It was admitted by the court without giving the parties opportunity to comment on it, particularly so in the light of the provisions of section 291(3) of the Criminal Procedure Act Cap 20 R.E 2002 (the CPA) which enjoins the court to inform the accused of his right to call the medical expert who prepared the report for cross examination. It has been held by this Court in a number of cases that, the omission is fatal and such report ought to be expunged from the record, which we hereby do. (See DOWIDO QUMUNGA V R. (1993), TRL. 120. In any case, we also agree with Mr. Kayaga, that courts are not bound to accept medical experts' evidence if there are good reasons for not doing so (See HILDA ABEL Vs R. (1993) TLR 246), AGNES DORIS LIUNDI V R. (supra). Once Exhibit P2 is expunged, the remaining substantive evidence is that of PW1 and the defence to the effect that he was confused, and the cautioned statement in which he said that he was provoked by the deceased's act of having slept outside their matrimonial home the previous night. We would, so far, on the premises, agree that on a proper evaluation of the uncontroverted evidence of PW1 and the defence and taking into account, the appellant's abnormal symptoms before and after

the commission of the offence, find that insanity was the most likely explanation for his behaviour. The contents of Exh P3 are the subject of the second complaint of the appellant. Since it was raised therein, the defence of provocation was part of the prosecution case. It was important that not only its contents be made known to the assessors, but also the question be put to them after explaining to them the nature of the defence, for them to give their opinion on the matter. Unfortunately this was not done, as we can see no such direction to the assessors in the learned judge's summing up notes. Expectedly, the assessors did not give any opinion on the question of provocation, As this was a vital point the omission was fatal to the conviction (see KATEMI NDAKI Vs R. (supra) TLR 257 and JESTINAL MALAMULA Vs R. (1993) TLR 197). Furthermore, the appellant retracted it at the trial. So it was the trial court's duty in such a case, to satisfy itself that it contained nothing but the truth, before acting on it. The trial court decided to rely only on part of it as lending corroboration to the appellant's conduct but did not touch on the possible defence of provocation raised therein. Essentially this was a wrong approach. Evidence on record cannot be treated indiscriminately. It must be analysed as a whole. It was not therefore open for the trial court to act only on part of the evidence and

leave the others. Be that as it may it was further incumbent for the trial court to look for corroboration. This is- because,, having been retracted at the trial, Exh P3 itself required corroboration as a matter of practice. So it could not be used as corroboration (See ALLY MSUTU Vs R. (1980) TLR

1. (where it was held that evidence which requires corroboration cannot corroborate). With respect, we can find none. So, the probative value of Exh P3 remains dismal, if any. From the above analysis, our own conclusion is that, while there is no dispute that the appellant killed his wife, there was no concrete evidence of provocation as the appellant had retracted his cautioned statement. (Exh P3) and there was no corroborative evidence to support it. Even if it had any probative value, failure to put the question of provocation to the assessors raises doubts as to what opinion the assessors would have come up with. The doubt is resolved in favour of the appellant. (See KATEMI NDAKI Vs R. (supra). But there is, in our view, clear evidence on record to show that at the time of the commission of the offence, the appellant was in a confused state of mind. If his defence is also considered, it is quite possible and we find it most likely that he did not know what he was doing or that what he was doing was wrong. He only came to realise later that what he did was wrong and that he did not intend to do it. That in

our view, amounts to legal insanity as provided in section 13 (1) of the Penal Code. And so we find that, on the evidence on record, the appellant was insane when he committed the offence. In view of our above finding, we allow this appeal. We quash the conviction for murder and set aside the sentence. We return a special finding under section 219(3) of the CPA, to the effect that, although the appellant killed the deceased (his wife) he is not guilty by reason of insanity. We accordingly proceed to order that, in view of the nature of the offence committed, the appellant be sent and is to be kept at a mental hospital as a criminal lunatic, under section 219 (3) (a) of the CPA. It is so ordered. DATED at TABORA this 26th day of June, 2014. K.M. MUSSA JUSTICE OF APPEAL S.A. MASSATI I certify that this is a true copy of the original. 10