Fredy Daudi vs Republic (Criminal Appeal No. 100 of 2007) [2014] TZCA 2206 (13 May 2014)

. ~, : ., 1 i IN THE COURT OF APPEAL OF TANZANIA . AT MBEYA ·, 1 (CORAM: RUTAKANGWA, l.A., BWANA, l.A., And MANDIA, l.A.) ' i CRIMINAL APPEAL NO. 100 OF 2007 FREDY DAU DI ......................................... .I ............................. APPELLANT I ;, VERSUS THE REPUBLIC ........................................... J ••••••••••••••••••••••••••• 1 • RESPONDENT {Appeal from the Decision of thJ High Court of Tanzania · I at Mbeya) !, I {Mrema, J.) t dated the 16 th day of March, 2004 in , i Criminal Appeal No. 124 of 2002 9 th & 14 th May, 2014 RUTAKANGWA, J.A: I _____________ i ___ _ I I JUDGMENT OF THE COURT I I The appellant was charged before the District Court of Mbeya for attempting to rape one Stella Mwene on! 2 nd February, 2009 at about 8.00 p.m. He denied the charge. On the eidence of the said Stella Mwene (PW1), Jackson Mwalizi (PW3) and qeorge Hailonje (PW4), he was I I I convicted as charged and sentenced to ttrty (30) years imprisonment. He unsuccessfully appealed to the High Court, hence the appeal. 1

.. In her evidence, PWl Stella told tJ trial court that on a day, time I and place she never disclosed, she came across the appellant. The I appellant allegedly wanted to know her name. After telling him her name, I he told her that she was the very one he, had for some time admired. He ~ felled her down and he began pulling d9wn his trousers. She raised an i' alarm which was respondend to by PW31 Jackson and PW4 George. On seeing these two people, the appellant j;allegedly took to his heels and disappeared. She reported the incident to the police and the appellant was arrested the following day. Her evidente got part support from PW3 ,, I Jackson and PW4 George. These two testified that they responded to PW1 I Stella's alarm. They rushed to the area 1nd found the appellant "on the I body of PW1" and he had to run away. They said the offence was committed at night but never disclosed thl time. I The appellant denied committing the alleged offence, but admitted being arrested by the police on the allegition of attempting to rape PWl I' I Stella. 2

In convicting the appellant, the trial I District Magistrate believed that I the appellant who was previously known to PW1 Stella and was a I neighbor of PW4 George, was unmist~kably identified by the three I prosecution witnesses as there was moo;nlight. In a judgment which has the hallmarks of a summary dismissal order, the learned first appellate judge dismissed the appellant's appeal. HJ thus reasoned: I ''I have gone through the appellant's grounds of I appeal but not any single complaint shows or tends I! : to show why two independeqt witness (PWJ and I PW4 ) should give the evide1ce they gave against I! the appellant The evidence does not even suggest I that these two witnesses havs any relationship with I PWl. Also the appellant did I not give any reason i why PWl should fabricate false evidence against him. ! In the final result I am satisfied that this !' appeal has no merit and I herkby dismiss it. " I 3

From the above extract it is clear that th~ learned first appellate judge, r with due respect, abdicated his duty of treJting the appeal as a re-hearing. I Had he done so, he would not have so rJadily dismissed the appeal. We r I shall demonstrate why we are of this respettful view. I In this appeal, the appellant is faJlting the two courts below for I predicating his conviction of on very wJak and totally unreliable visual I I identification evidence. On this complain~, he is being supported by the respondent Republic which was ably ,epresented before us by Ms I Scholastica Lugongo, learned State Attomr- i Arguing in favour of the appeal, Ms Lugongo stressed that the prosecution case rested entirely on thJ purported visual identification r 11 evidence of PW1 Stella, PW3 Jackson and PW4 George. It was her strong r contention that this evidence, even assum)ng that the appellant was known I to the three witnesses, was very weak ahd unconvincing. The reason she 11 assigned for her stance was that the winesses never testified as to how they were able to identify the appellan~ as the culprit. She went on to l argue, and very correctly in our view, 11 that although PW4 George very ! I i j, 4

belatedly, while under cross-examinationl alluded to moonlight this bare ! . assertion is unconvincing as he did not qescribe the intensity of the said moonlight. She accordingly pressed us to allow the appeal. i I Unarguably, the prosecution cas against the appellant was [ predicated on the purported visual identification evidence, which the two ! courts below, either by design or inadvJrtently, took to be evidence of I recognition. We are saying so not a9visedly. This is because in his judgment, which was upheld by the learded first appellate judge, the trial i magistrate said:- "Going through the evidenf e adduced by the prosecution side we can see that the testimony I I adduced by Stella Mwene is that she saw the f accused twice before the event of attempted I· i rape took over (sic} that ip,eans the issue of identification of the acc~sed here has no r doubt also PW1 narrated j:to court that there was moonlight and thr accused was his neighbour." [Emphasis is o'urs]. I 5

I We have to pause here and stae without any fear of being f: contradicted that the good trial magistrate: was relying on evidence which I, 1· is not on record. In her entire evidence P\JV1 Stella never testified to have I known or seen the appellant before the allged incident. Furthermore, she 1 said nothing regarding the state of light at the scene of the alleged crime I which would have enable her to identity her assailant. Worse still, she I never testified at all that the appellant was:; her neigbour. Regarding PW4 George, the trial Dist!rict Magistrate said:- i "The evidence of Stella Mwen~ was corroborated by I the evidence of PWJ Jackson walizi and PW4 one I I George Hailonje who testifie 1 that .... by good luck they met the accused being /on the body of PWJ ! and on seeing them the ac4used decided to run away. . PW4 identified hi~ as he was his I neighbor and that there w'?s moonlight. Again I ! see that the issue of ident~fication here has no doubt. "[Emphasis is ours]. 6

I Again here the trial magistrate was acting ?n the figment of his own fertile I but dangerous imagination. PW4 George never testified at all that the I ! appellant was his neighbor. All he said was; ''I know PWJ as she is my neiJhbor. " ! Returning to the central issue, we have to quickly point out that the I. conviction of the of the appellant was adn,ittedly based on the purported I visual identification evidence, of the three prosecution witnesses. It is trite 1' law that such evidence even if it be evid~nce of recognition, as correctly ! submitted by Ms Lugongo, as of theI weakest character and most I unreliable. No court, it is now settled, should act on it unless all possibilities of mistaken identity are eHminated and the court is fully I satisfied that it is absolutely watertight: See, for instance: (a) Waziri Amani v. R., [1980] TLR! 250; I (b) Issa Mgara@ Shuka v. R., Cri!ininal Appeal No. 37 of 2005; I (c) Shamir John v. R., Criminal Appeal No. 166 of 2004; I (d) Mengi Paulo S. Lihana & Another v. R., Criminal appeal No. 222 of 2006; and (e) Boniface s/o Siwinga v. R., Griminal Appeal No. 42 of 2007(all unreported). 7

j, I In Shamir John v. R, the Court aptly held: I I held: ''Although evidence of recognition may be more I I reliable than identification ofl: a stranger, courts I should always remain alive to t/;Je fact that mistakes I I in recognition even of close I relatives or friends I often occur. " [: I Again, in Mengi Paulo S. LuhanJa's case, the Court I I I I "Eyewitness testimony can be I a very powerful tool I in determining a person~ guilt /or innocence. But it can also be devastating Jthen false witness I I I identification is made i due to honest confusion or outright firing." [Emphasis is supplied]. This case provides a glaring oppounity to vindicate our stance in 1, Mengi Paulo S. Luhanga's case. It dmonstrates how "devastating" I false witness identification can be duJ to "outright lying." In this 8

! I particular case both PW3 Jackson and PW~ George lied to the trial court I claiming to have identified the appellant po:sitively because they found him lying on the body of PWl Stella, which \Yas not the case going by the I evidence of PWl Stella herself. We accordingly find the evidence of PW3 I I Jackson and PW4 George not worth of any credence. This leaves us with ,· the evidence of PWl Stella. I Stripped of the embellishments adde0 to it by the trial Magistrate, we ,, I have found the identification evidence of PWl Stella totally wanting in I cogency. If her evidence is anything to bi the appellant was a stranger to . I her. Her evidence is starkly silent on thf factors which enabled her to identify the appellant as her assailant. N9 identification parade was held. I, Her pointing out the appellant in court as 1the one who attempted to rape I her, was purely dock identification, which settled law has qeclared to be I valueless. Since the evidence of PWl St~lla is of no probative value, we I are left with no evidence to sustain the cohviction of the appellant. I From the above discussion, it ha 1 s been amply demonstrated that I the appellant was convicted on the basis :,of imagined evidence of the trial 9 T

• ' magistrate, concocted evidence of PW3 Ja<r:kson and PW4 George and the valueless visual identification evidence of PWl Stella. We are, therefore, constrained to quash his conviction and s~t aside the prison sentence as we hereby do. The appellant is to be releai ed forthwith from prison unless he is otherwise lawfully held. I#, F.J. KABWE II DEPUTY REGISTRAR COURT OF AP.PEAL r 10