Abubakari Hamisi &Another vs Republic (Criminal Appeal No. 253 of 2014) [2014] TZCA 2203 (27 March 2014)

-f .. . . . . THE RE.PUBLIC .. ; ........... : .. ····· ... : ........................................ ; ..... ~ ... ·RES·PONDE.NT . (Appal Frori-{the Decision of the High Court of Tanzania : · At Dar es Sflaam) 12 th & 27 th March, 2014 ,·',; JUMA, J.A.: (B. R. Mtunqi, J.) . Dated the 2 nd day of November, 2011 in Crim. Session No. 62 of 2009 JUDGMENT OF THE COURT. -Tt'.t CettN{ 1%W1 tn.aJ ~ v ~ i, u d <-"cf ovvi d vr, ucl1 d {Utf.tU 1 ~ 1 ~ ft,t CCtU:f1t¥P . ';,1'\ -· ' ·,; . The two appellants, Abubakar s/o Hamis and Stephen s/o Focus @ ,t TYSON were tr_ied by the High C(_)urt for a .charge of m&rder contrary to ;:\ft: ··;. section 196 of the Penal Code, Cap. _ 16. The partkulars of th·e' offence stated that on 6 th November, 2007 around 22:00 hours at Jagwani area within Ilala Distrktof Dar es Salaam; they murderd NAJMA D/O KASSIM. After the trial, -the three assessors were LHlanimoUs that the two appellants .. · were not guilty ofmurqer, ar~ci, r.ecom(nended-th.eLr. ~CQ,LftttaL: The-':(eat.ned'

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trial. Judge (B.R. · Mutungi) took a different view · of the evidence. She · convicted each appellant as charged and sentenced each to death. · Nasim Hussein Daudi (PWl), a son of the deceased, recounted how his mother, Najma d/o Kassim met her death. He and his mother were from Kariakoo, riding back home on his motorcycle. PWl recalls how, upon reaching a road junction at "Fire Station" along the Morogoro road he had to stop at' red traffk.. lights signals. When traffic lights 'Signalled green, like . . others who had stopped, he continued on towards Magomeni. As he was approaching the Jangwani stretch of the road he saw a group of people crossing and then blocking the, road. It was at this point he felt something blocking his progress and u1'e path. His motorcycle Swerved off the rbad, . . . . . . throwing him and his mother on.to the ground. It was only later when PWl reaHzed that a rope had·· been thrown across the road . to block his· motorcycle .. Jt was after he had been thrown off the motorbike when a group of people set upon him brandishing a bush knife demanding his money and ~ e . . .. his mobife phone. He . surrendered his. money and his mobile · phone. Meanwhile,· his mother was still on the ground. She waS seriOusiy hurt. . . . . ... ,, 2

Blood was flowing from her ears., nose and head. She died the following day at Muhimbili National Hospital where she had been rushed with assistance of some members of the public. Appellants were not arrested· at . the scene of crime. It was . confidential information from police informers which led to their arrests. PW2, E.3919 Detective Corporal Apolinary and D. 6908 Detective Corporal Deus explained how the police came to learn and believe that it was· the two appellants who were responsible for death of the deceased. Concerned with incidents of waylaying and stealing from unsuspecting motorcyclists using ropes strewn across the road, PW4 had planted an. informer at the spots where bandits frequently waylay unsuspecting motorists. The · informer refayed back information that the suspects involved in the iP.cidents idle away their daytime at 1:(eko, under a bridge: A police patrol was arranged on 24/11/2007. The· patrol surrounded a group of suspects at te bridge, but most managed to escape from the police dragnet. Two suspects, induding the 1 st appellant were arrested . . ·': Once in· poiice custody, it· was •the 1~t appellant ·who aHege9ly mentioned the name of the 2 nd appellant. According to RW4, )t was again 3

,:., an informer who on 03/02/2008 informed the police that the 2 nd . appellant had been spotted roamitig about at Kariako6 Market. Police arrested him ... The prosecution version of the evidence was disputed by the . two appellants. The first appellant (DVl/1) insisted his innocence by explaini_ng how he was arrested at Keko Mwanga area by the police who did not even bother to tell him why he was being arrested. The police forced him to sign a document that linked hirr( to the crime. The second appellant also testified in his own defence (DW2) to claim how he was beaten up at Msimbazi Police Station and forced to make a cautioned statement. After hearing the two opposing versionsof evidence, B.R. Mutungi, J. was not·. in . any doubt that the prosecution case rested on the two cautioned statements· which the appellants made to the police officers, PW2 and PVv4. Further, the learned tial Judge ·believed that the cautioned statements the two appellants made were voluntary. In this appeal the appellants, through Mr. Dickson Venance Mtogesewa thlr learned counsel, brought four grounds of appeal. First; · the appellants complain that post-mortem· examination· report (Exhibit P3) ·. should not have been admitted and ,exhibited without giving the appellants··· 4

an opportunity to test its credibility and probative value through cross examination. Failure to evaluate evidence that was .on record is at the core -~ I . I of their second and third· grounds of complaint. They contended that without such evaluation, the trial court was not entitled to conclude as it did, that there was sufficient evidence to prove the prosecution case beyond reasonable doubt. The fourth ground is concerned with probative value of the two cautioned statements, exhibit Pl (for 1 st appellantY and exhibit P2 (for the 2 nd appellant). They contend that these statements should not have been relied and acted upon by the trial court without first ascertaining their credibility. When this a})peal was set down for hearing, Mr. Mtogesewa, learned · advocate, appeared for the two· appellants. Mr. Zuberi Mkakatu, learned State Attorney, represented the respondent Republic. The main thrust of Mr. Mtogesewa 1 s submissions on first ground questioning the exhibitfon of post-mortem report may be summarised into two limbs. First, he submitted ·that in violation of section 291 {3) of the Criminal Procedure ·Act, Cap. 20 (the CPA), that· report (exhibit P3) w .. as_ admitted without . ·giving the appellants a,ny chance to cross examine : PW2. who was recalled by the 5 t(

prosecution specifically to tender that report. He referred us to section 290 of the CPA insisting that this provision obliges trial courts to ensure that ·.; prosecution witnesses are available for cross examination by the accused persons. In. the second Jjmb, Mr. Mtogesewa submitted that the trial court erred to allow PW2 and not a medical officer who had prepared post-. mortem report, to tender that medical report. He invited us to seek inspiration from our interpretation of section 240 (3) of the CPA on-· manqatory obligation placed on trial courts to inform the accused person of the dght to demand the attendance of a· medical officer who prepared a medical examination report sought to be exhibited as evidence. Relying in the case of Babu vs. Republic (2012) 1 EA 8 and Maulid Yahaya @

• ~~. ~ M-vvaHmu v. The Republic, Criminal · Appeal No. 170 of 2005 (unreported), Mr. Mtogesewa urged us to expunge the post-mortem . examinat1on report ( exhibit P3) from the record of the trial court. Mr. Mkakatu conceded that the · defence had the right to cross- examine the prosecution witness {PW2) who had been recalled. He agreed . . . . with. Mr. Mtogesewa that fhe post-.mortem examination report should be ~ expunged · from the record . because · it was exhibited· as prosecution ti

"- .. evidence by. a witness· who was not subjected to any cross examination by the appellants through their learned counsel. It is clear to us that apart from the evidence of the deceased's son (PWl), the . learned trial Judge relied on the post-mortem . examination · report (exhibit P3} to conclude that the deceased died from head injuries. This is borne out on page 63 of the record. -As correctly pointed out by the two learned counsel; the defence was · not accorded a chance to cross examine· PW2 when he was recalled to tender exhibit P3. This is borne out by the record of proceedings on page . 19 to 21. J from the submissions of the learned Counsel, three issues of law arise for our consideration. First is the right of an accused person to cross- examine a prosecution witness. The second issue of law also arises from the scope of section 291. That is, whether we should extend our settled position under section 240 (3) of CPA to section 291 on the obligation of trial courts to inform accused . persons of the · right to demand,, the . attenqance of a medical officer who prepared a. medfr:al examination report sought to be exhibited as evidence. Third· issue of law arises from · 7 I l

.. interpretation of section 291 of CPA, that is whether a police investigator like PW2 was, or any other person who is not a medical witness, can ~ . tender and be cross examined on a medical document like a post-mortem report. Beginning with the issue on the right to cross examine, it is· · provided for by section 290 of CPA. This section states: 290. The witnesses called for the prosecution shall · be subject ta. cross-examination bv the accused person or his advocate and to re-examination by the advocate for the prosecution. [Emphasis is ours]. The above cited provision is couched in mandatory terms. We agree with the two {earned counsel that the trial court erred when it denied the appellants their right to cross exam in~ PW2. We may also add that section 290 of CPA gives statutory effect to -the constitutional right to be heard . provided uhder Article 13 (6) (a) of the Constitution of te Unitd Repuli, · 1977. Appellants had every right to defend themselves and to call witnesses to support their respective defence. They also had · the right to . . . - . ' ~-. .. . 8

contest, contradict or deny the - evidence put forth - by the prosecution witnesses against them through cross examination. VVe next propose to explain why we agree with Mr. Mtogesewa that the· right of the accused persons to be informed by the trial court of their right to demand the attendance of a medical officer under section 240 (3) of CPA; extends to medical documents sought to be tendered under section 291 (3) of CPA. In ther essenc., sections 240 (3) and 2:91 (3) of th_e CPA both regulate the admissibility of statements by medical witnesses. Section . . 240 (3) which falls under Part VII of the CPA, governs admissibility of • • ✓ - statements by medical. witnesses dring trials in_ the subordinate courts. . . , Sectio;- 291 on the other hand falts under Part vtn of the CPA. It regulates statements by rned~cal witnesses during the tria:ts in the High Court. These two provisions state: 240 (3) .:. - When a · report referred to in · this section is received in· evidence the court may if it thinks fit and shall if so requested by the accused or his advocate/· __ , summon and examine c0r make available for-cross- -examination- the_ person- who made tf?e report; and the cour:t shall inform the accused of his right to reauire the person who made the report ix/ be 9

.- .-, summoned in accordance with the provisions of this subsection. [Emphasis added} 291 (3) - Where the evidence is received by the cou~ the · . court may/ if it thinks fit and shall if so requested by the accused or his advocate 1 summon and examine or make available for cross-examination, the person v ✓ ho made the report; and the court shallinform the accused of his rj{ght to require the person wh, 1 r:l made the report to be summoned in accordance with the provisions of this subsection. [Emphasis added]. It · cannot escape our observation, that the words " ... summon and examine or make available for: cross-examinationr the person who .. . ~ 1 . made the report; and the court shall inform the accused of his · right to require the person who made the report to be summoned ... " appear in both provisions'. As we have shown above, in determining the scope of sect1on 240 (3), th1s Court has already settled the law imposing a mandatorv obligation on the subordinate courts to inform· an accused person of his right to have the medica;I doctor called for cross-examination ·if "' he so wishes. ~ see the following un'reported cases: Sprian )ustine . Tarimo vs. R., Cri.minal Appeal No. 226 OF 2007; Ismail Alty vs. R., 10

Criminal Appeal No. 210 OF 2008; and Lazaro S/0 Stephano vs. R., Criminal Appeal No. 9 OF 2013. For purposes of ensuring consistency and certainty of interpretation, this Court endorsed the principle of parity the Court 1 s interpretation of section . . tl:i~~;;.d?.,',9~~~~~~i~tent with our settled interpretatJon. of section 240 (3) to ~ . __ .,...,.., ': . . ;--..,;-•·: ... . . G)'.Qfrge the tdal · High Court to inform accused persons about their right t0

• cross examine medical witnesses when a medical report is about to be R,rcCriminaI Appeal No. 15 of 2013 (unreported) the record of the trial court ·-'iti:.-. did not reflect whether the accused was informed of his rights unde:r sectifJO - . 11 •• .it has also been held by this Court that; the provisions of section. 291{3} · of the · CPA are man-datoryand places on the trialcourtr the duty of . informing an accused p<:!rson of his right.to call the . . doctor who . prepared the postmortem report to . . . - ~ •· testifvr and that it is only .him_(the~accy§ed.) who .... . . . ... . - -- ·----·-··---- \ can ,declde whether or not to call him. No one. else·. · can wish away that righfr and non compliance was .· 11

· fatal {See DAff ✓ IDO QUMUNGA V R, (1993) TLR 120 . . With respect this irregularity is not curable under section · 388 of the CPA,.,as Ms Njiro would wish us to believe. It mar ✓ perhaps/ not . be out of place to remind the . prosecution that section 388 is not meant to be an escape route for all kinds of irregularities/ because not every irregularity is curable undet that provision ... I'/ [Emphasis added]. The third issue of law centres on the competence of the police corporal (PW2) to testify as a medical witness and to tender a medical document. We unsuccessfuHy prodded the two learned Counsel to explain to us whether PW2 was a medical witness within the meaning of section 291 of the CPA whose marginal notes is . titled ''Statements by medical vvitnesses,,_ The relevant section 291 states: · 291.-(1) In any trial before the High Court any document purporting tobe a report signed.bva.medlca/·:wftness upon a purelv. medical or surgical matter, shall be receivable in evidence save that this subsection shall not ap13/y unless reasonable notice 9f the i1;Jtenti0n to produce the document at the trial together with a copy of the document; has been given to the accused or his advocate. ·

. was a medical witness envisaged under section 291 who could in the absence .. ()f Dr. Mushi tend~r a post-mortem . examination . repOrt. and •, ,espond to cross examination on medical or surgical matters. Exhibit P3 is . concerned with medical cause of the death of the deceased and was signed by a medical witness ·upon a purely medical· or surgical matter. We therefore do not think that attendance of a police officer who investigated . . the crime can be any substitJte of a medical witness to be cross examined by an accused person . . Again, we also do not think that law. is so rigid,· as to demand only Dr. Mushi, who prepared the medical report, should be the ·medical witness under section 291 of CPA. With absence of Dr. Mushi _as a medical witness, · Muhimhili National Hospital still had tens of other medical witnesses with · requisite trainjng, qualifications and expertise of medical witnesses. AH in atl, we allow the first ground of appeal · and expunge from the recotd the recaJled · evidence of PW2, · together with exhibit P3 which he · . tender-ed. i" 14 I

The fourth ground of appeal is .pertinent to this; appeal because the . I • I learned trial. judge f?und that the prosecution cas( was anchored on cautioned statements of the two appellants: 11 ••• the prosecution case rests upon the two cautioned statements which give the sequence of events which led to . I the waylaying of the motorcycle being driveh by PWl and conseq'!ently leading to the falling of the deceased and ultimately her death. H Submitting on probity of the cautioned statements, exhibit Pl and exhibit i I P2, Mr. Mtogesewa faulted the way the learned triaf Judge concluded that the cautioned statements should be given their due weight once admitted . ~ without being chaflenged. According to the learned counsel, the question of • I weight does not arise at the time of admission qf evtdence but comes / much later when the trial · court evaluates the evidence in· light of other . pieces of evidence. He submitted that although there was no objection when the prosecution tendered cautioned statemepts, stilt, the trial court I / ·· shouW" have'' taken into account the fact that ! the confessions were retracted. 15

Responding to these subrr1i?sions, Mr. Mkakatu initially oppsed. the appeal contending that 1 the appellants' cautioned statements disclosed •1 essential elements constituting the offence of murder and this appeal should be dismissed. But shortly later, the learned State Attorney changed his stand and now supports the appeal. In addition, he could not help but concede that in serious offences like murder, the accused persons should have been asked first before the trial court admitted their cautioned statements. The learned counsel similarly wondered why, the cautioned i _____ .......: __ ,_ . .. . .. . . .. -.·, .. -"•··-"····----·- statements were not r-ead out aloud in court, to make their contents known to the appetlants and the three. assessors whose opinion the trial court sought at the conclusion of the trial., from the submissions by the 1earned counsel on cautioned statements, the first basic issue that calls for Ol}r determination is whether cautioned · statements ( exh1b1ts Pl and P2) amounted to a confession or not. Both Mr. Mtogesewa and Mr. Mkakatu do not dispute that the cautioned statements 9f the appellants amounted to confessions. We agree with the two learned counsel, the words said in exhibit Pl a~d exhibit P2, when· taken together.· with the evidence of PWl on how his mother died, an· inference may

reasonably be drawn that whoever spoke those words, committe.d. the offence of murder. The second basic issue is whether, after admitting the confessional statements of the appellants which they retracted during the course of the · defence the learned trial Judge was entitled to conclude.· that the cohfessional statements were true. The evidence confirming that the two appellants had retracted their confession is not disputed by the two learned counsel. Testifying in his own rlefence as DW1, the 1 st appellant retracted his earlier confession by narrating. how aJ Msimbazi Police Station following his arrst, he and others . were be3ten up so as to own up responsibility for murder. DWl also recount-ed hovv he was forced to sign a paper in a room full of police officers. The 2 nd appellant (DW2) nafrated a similar account. He was tied and beaten up w-hi1e the police were urging him to agree to what they wanted. The Jearned tdI Judge explained why she believed that the cautioned statements o(the two appellants wer€ truthful to sust 9 in conviction. There . . . was AO objeq:ion from the defence when the tw~ prosecution witnesses, 17

PW2 and P\N4, asked to tender the statements, the trial court noted. The· cautioned statements - provided detailed sequence leading to the falling do'wn of the deceased from a motorcycle and her subsequent d:eatlJ~ Anothl1]Fni~~,a,tJf:?was tn:at -these statements were taken by two differnt . . . ..-'--:--------·-· .. ·- .............. ,._~ ·· ····-:.- police officers at di.fferentdat:es yet provided similar detailed accountst1_ In our re-evaluation of the retracted confessions· which the trial court reHed upon to establish the guilt and subsequent conviction of the appeffants, we shall rely on several decisions of the Court as our guide. After admitting the cautioned statement with or Without objection of the accused, the next important issue for determination by a trial court is ,;;: weight of ·that evidence. As this Court has often said,-_ admissibility of confessional evidence is one thing but the weight to be attached following that admission is an important issue as well.- see- Steven s/o Jason and Two Others vs. R., Criminal Appeal No. 79 of 1999 (unreported). The question of weight inevitably extends where a confession is retracted when the accused is giving hi ....... The trial court is required to first satisfy ,·- ~ itself that it was voluntary. The Court, in Bakari Hussein .vs. R., Criminal . Appeal No.· lS-9 of 200 I restated that indeed a trial court can. act on a 18

retracted or repudiated confession if after cqnsidering all the circumstances it is satisfied that the confession cannot but be true. But, citing Dickson_ Elia Nsamba Shapwata and Another v Republic, Criminc3I Appeal No. 92 of 2007 ( unreported), the Court added that it is always desirable to look for corroboration in support of a confession which has been retracted or repudiated before acting on it. This Court has issued tests to be complied . ; with before acting on cautiohed statement that has been retracted or repudiated. In Elinema Kibo vs. R., Criminal Appeal No. 138 of 2013 the Court emphasized that trial courts must treat the retracted or repudiated confession with caution. It must a1so show that it is satisfied that in the drcumstances of the case the confessioh is true .. And the fact. that a confessional statement is so detailed, it does not necessarily means that it -ts true. - Ally Chande @ AUy and Another vs. R~, Criminal Appeal No. 16 of 2006 (unreported). There is nothing ~n the judgment of the tdal court where the learned trial judge after weigh1ng the confessional· evidence and surrounding circumstances . definitively concludes that· the retracted confessional statements were nothing ·but the truth. As this Court said :in Steven s/o 19

Jason and Two Others vs. R. (suprh where in the retracted confesion the accused person co.mplains beatings before police took their statements, it was incumbent upon the learned trial judge to be more cautious in ' evaluation and consideration of the 2aution statement. It was not proper . . . for the earned Judge to brush-off the appellants' complains of beatings simply because their learned counsel· did not object when the prosecution I j introduced their statements. Again, we do not think the dettJiled confessions made to two diffrent police officers were adequately evaluated to guarantee their truthfulness. In his evidence, the police officer I I who investigated the case (PW2) stated how on 10/11/2007 he was given case file to investigate. He conceded that he worked together with PV\14, to investigate the death of the deceased. The two police officers must have . . I . . I . . . I relied on one investigation file. They. must have been familiar with information contained. in that file. They did not conduct investigations. c-ompiete:ly independent of each othr. It seems to us that, simply because . . . . I . . PW2 and PW4 at separate dates wrote detailed confessions, does not guarantee the truthfulness of the conf~ssional statements they w~~te. ,., I I I ·20

I . It is also appropriate to observe that, during the trial, the contents of the cautioned statements were not disclosed to not only the appellants but also · ., · to the three assessors who were present. These . assessors were so unaware of the contents of the confession that they arrived at a unanimous · conclusion that there was no evidence linking the appellants . with the offence. This unanimous conclusion prompted the learned trial Judge to point OtJt the following: " ... They [Assessors] dtd not consider the caution statements tendered as direct evidence. They generalized it as hearsay to be found in the court file. This is where I differ in that the caution statement should be given their due weight once admitted and not challenged as they form part of the evidence. H The above-cited observation shows how the learned Judge explained her difference with the opinion of the assessors was because they were not aware of· the contents of incriminating cautioned statements. But, in fairness to the assessors, tl¾'.:\ ·vvere unaw,are of ·the confessional me;at-s because-they::were not read out to them •when the. o:Ut'.μtet r;-epresen'tihg the appellants · did not object when they were · tenderd)$S. . •' ~--·:- 21 . zi.: l

evidence. In Andrea Ngura vs. R., (supra) the Court '!!as deeply concerned that the asse.ssors, who were present throughout the trial, were· . occasionally not given the chance to put questions across - to some prosecution witnsses. The Court observed that the ultimate value of their opinion very much depends on how informed they are. The following observations which the Court made in Andrea Ngura vs. R (supra), can as well apply .. to the present appeal where the- contents of the cautioned state·ments which formed the basis of the conviction of the appellants, was not made aware to the assessors: 11 ••• Trial by assessors is an important part in all the trials of capital offences in Tanzania. Although/ in 'terms of section 298(2) of the CPA their opinion a.re not' binding on the -trial judge, the value_ of their_ opinions very much depends on how informed they could be. To maximise the value of such opinions, the trial judge should not only, before trial begins/ explain the duties of the assessors (See MAGAZJ KJLUNGA V R. (1981) TLR. 16 but in terms of section 177 of the. Tanzania Evidence Act Cap. 6 R.E 2002 also 'attord them the opportunity to put ··qestion to the witnesses so that they · can: decide on · the credibility or otherwise of such witnesses. {See SAID MOHA/v1ED MRIMI V 22

R. Criminal Appeal No. 12 of 1991 (unreported). ✓ -'[Emphasis added]. With above observations in mind, we respectfully do not share the learned Judge's conclusion that the. confessional statements which were. not corroborated . and their contents unknown to the assessors and appeHants, guaranteed their truthfulness to sustain the conviction of the · appel.lants. There is one last matter which, we should comment on. We must· ex.press our wonderment why the learned advocate who represented the appellants during their trial· in the High Court refrained from objecting to the -admissibility of confessional statements when these were offered. Yet he examined in chief the two appellants, specifically leading them to retract · their confessions. Should the learned trial Judge have asked the appellants whether they had any objection before their cautioned statement was .exhibited? This brings· us to an important question, regarding what in law ~·should trigger the trial High Court to order a trial within trial to determine ·" the vofuntariness of a statement attributed to an accused person. The learned trial Judge believes that it is the defence which should have first . 23··

objected in order set into motion the trial within trial. The learned trial Judge said: ;'I will make a comment at this juncture that during the defence case the two accused persons tried to purport to retract or repudiate the caution statements alleging that they · were beaten and were under threat. I still find that this was an afterthought as they were tendered and admitted vvithout .· chal/enqe~ If at .all it was true that the statements were procured bv threats and. beatings then the. accused. persons should have told their .advocate to challenge the statement and Jet a trial within a trial be conducted to ascertain the voluntariness of the statement. f/ [Emphasis added] The position taken by the learned trial Judge to the effect that it is an ohjection from the defence that invariably triggers a trial withintrial is in line with several decisions of the Court .. For instance, in Felix Lucas Kisinyiia vs. R., Criminal Appeal No.· 129. of 2002 the appellant made cautioned statement and also extra-judicial statement before a Justice of the Peace. He was '.convicted on the basis of. these statements. At . the .. preliminary hearing learned· advocate who defended him objected to the c1dmissfQn of the cautioned statements .. However,. when the matter came 24

for hearing the same learned advocat€ raised no objection when the ·. . cautioned statement was tendered. The Court wc:Js convinced that a trial within a trial was not ecessary, explaining that such a trial within trial is done o·nly if there is an objection to the admission of a statement on the ground that it was not freely given. The Supreme Court of Uganda has taken a very different approach and · has over the years invoked the constitutional principle on presamption of · the innocence of the accused. to impose the duty upon the trial courts, to give the accused persons the opportunity to say anything about the confession statements before it is tendered by the prosecution. In · sewankani'ho Francis and Others v Uganda (Criminal Appeal No. 33 of . . . . . ·. 2001) appel:lants were in their trial represented by learned counsel. Their confessions which were recorded by Police Officers were admitted without · any objection from their counsel. During their de.fence, they repudiated their confessions. The Supreme Court made the following pertinent statement of law: . . ' .. As the 1ecord shows/ it appears that the /ear~ed trial judge did not give either the defence counsel or the appellants any 25

opportunity to say anything about the confession statements · before the documents were admitted in evidence as prosecution exhibits. It wolf Id seem therefore/ that there was no way· the ·, appellants or their defence counsel could have raised any objection to the admissibility of the confession statements in case they · wanted to do so; Not surprisingly therefore/ no objection was raised. The issue of whether a confession the admissibility in " evidence of which has not been objected to by the defence can .be admitted in evidence/. without a trial within a trial to determine its admissibt!ity can be used to convict an accused . . person has been considered by this Court in recent cases. The . clearest and the most relevant decision of this Court was in the case of Om aria Chandia -vs- Ugandai -Criminal Appeal No, 23 of2001 {SCU} (unreported). In that case the appellant was convicted by the High Coult of the murder of his wife in Ow/no Market in Kampala/ where the cfeceased was a trader in a stall. Seueral eye. witnesses saw the appellant stab the deceased to death with a knife. A confession statement allegedly made by the appellant was admitted in evidence i-vithout o6jection from counsel for the appellant. His appeal to the Court of Appeal failed b~cause/ _apatt from his alleged confession there was ample evidence:from eye· · 26

· ,_ witnesses to supportthe conviction. In his appeal to this Cou~ one of the grounds of appeal · was that the le1rned Justices of Appeal erred in fact and in law when they admitted the charge and caution statement, extracted from the appellant. Regarding that ground of appeal this Court said: "Firstly, we would reiterate v.41at we have stated in our recent decisions that because of the doctrine of the presumption of innocence enshrined in Article 28(3) (a) of the Constitution where/ in a criminal trial an accused person has pleaded not guilty, the trial court must be. cautious !Jefore admitting in evidence a confession statement/allegedly made by an accused person prior to his trial. ? We say this because an unchallenged admission of such a statement is bound to be prejudicial to the accused and to put the plea of not guilty in question. It is not safe or proper · to admit a confession statement in evidence on the ground that counsel for the accused per:son has not challenged· or has conceded to its admissibility. Unless the trial Court ascertains from the accused person that he or she admits having made the confession statement ,,voluntarilYr the court ought to ,:'. . hold trial within a trial to determine its admissibility. See Kawoya Joseph ~vs- Uganda/ Criminal Appeal No. 50 . of 1999/ · (SCU) (unreported) Edward Ka,11oya -vs- 27

. . · Uganda 1 ·. Criminal Appeal No. · 4 _ · of · 1999 (SCU) (unreported) ·and Kwoba -vs- Uganda 1 Criminal · Appeal No. 2 of2000 (SCU) (unreported). Therefore/ and with respect;. we think that it was improper for .the learned trialjudge to admit in . . ,evidence the confession statement { exhb. P. 3) of the accused on the· basis that his counsel did not object." The earest our Court came to the position similar to that of the Suprme Court of Uganda, was in Twaha s/ o Ali and 5 Others vs~ R., Criminal Appeal No. 78 of 2004 (unreported)] and Hamimu Hamisi Totoro @ Zungu vs. R., Criminal Appeal No. 124 OF 2005. In Hamimu Hamisi Totoro @ Zungtl (supra), the appellant had - complained that the trial District Magistrate had not given him an opportunity to object to the admission of his cautioned statement, he ·argued, the admission of that cautioned statement was improper. We stated_ that giving an accused person an opportunity to object to the admission of cauti.oned statement is a pre! ude to ensure the prosecution ~ . ~ bears its burden nf proving that a confe~sion mad<= by an accused person . · was voluntarily madeby him. 28

.rn Twana sf o AH and s others (supra) appellants had preferred a second appeal to· the. Court to contest their· conviction for the offence of "{ armed robbery. Appellants maintained that their alleged confessions contained in their cautioned statements were not voluntary .. Mrs. Kabisa, the learned Principai State Attorney representing the respondent Republic dtd not agree. She submitted that appellants' confessions were voluntary · and had this not been the case, the appellants _yvould have raised their objections when thefr statements were being introduced as evidence. The Court, specifically addressed itself to the question whether during their trial, appellants were given the opportunity to raise objections to the proposed introduction of their confessions as evidence. The Court said on pages ·6 and 7: ,~ .. The mostpressing issue now becomes whether or not the appellants. were given by the trial court the opportunity to raise such objections. Our objective . reading of the proceedings in the · trial District Court has led us to the conclusion that it did not All of the cautioned statements • were admitted in.evidence following the applk:atiorzs of RWJ Sgt Josephand'PW6 SgtRamad~ani to tender them without · the appellants being asked on whether th.ey had objections or not. If this was done/ the record does not show that .. Since ··.29

the appellants are contending that this was not done and they are the ones who were in court when the statements . , } were being tendered the benefit of doubt should be given lo them. 11 Later on page 8, the Court said: 11 •• • As the appellants were not accorded the opportunity to raise any objections on the caution statements··before they , were admitted in evidence it would be risk-taking even to assun1e here that they were voluntarily made/ in view of their persistent claims that they were a result of torture. .. .. We wish to emphasize the importance and necessity for

• * the trial courts not only to inform accused persons of this ··. right; but also to remind them. [the courts) of the duty they /Jave to record faithfully what an accused person says in response. The trial courts. record of proceedings must reflect In Twaha s/ o Ali and 5 Others (supra) the Court disregarded the confessions, concluding that the omission to it,,form'l' the accused person if· · ~ they have any objections on the caution statements before they are 30- .·

f ..-. admitted was a fundamental and · incurable irregularity. which greatly prejudiced the appellants. · We take the view that iii every case where an accused person is unrepresented, a trial court has a duty to give an accused person an oppo-rtunity to objectto the admission of cautioned statement. This duty of the trial court extends also to cases where · an accused person is represented but the learned counsel does not object to the admission of cautioned statement. It does not take away much, time to simply alert the -accused person that a confessional document is about to be offered as self-i ncri mi nati ng evidence. Similarly,. learned advocates who represent accused persons facing capital offences should heed what Philip . Nnaemeka""Agu, Justice of the Supreme Court of Nigeria stated in :Michael Okaroh vs. The State, SC . . . . .. 58/1989: • . .It goes without saying 'that a counsel in court in a . t~ c_apitc1!· trial has a very important a'nd sarecl_ duty to perform. ,He o.wes. tliat iluty to not onlv his . . clientandthe court but also ,tsocietvat large, .It , 31

• is of the very essence of that duty that he should promptly take objection to every irregularity at the trial, be that · an. irregularity relating to procedure or to evidence called at the trial Where/ as in this case/ he did not object; I take it to mean that he saw nothing wrong in the procedure adopted at the trial. At the highest; { would regard the defect; if an½ in.· · - this case as an irregularity. I believe it to be the correct principle that such an irregularity. in procedure in a criminal proceeding will not result in an appeal being allowed unless the appellate court is satisfied that a miscarriage of Justice has been occasioned. '' [Emphasis added]. Having said so much, we allow the appeal, quash the convictions of the tv\ 1 0 appellants and set aside their respective sentences. The appellants are to be set free un1ess otherwise lawfully held. 32_

DATED at DAR ES SALAAM this 19 th day of March, 2014. . . . . I E.M.K. RUTAKANGWA JUSTICE OFAPPEAL , , S.A.MASSATI . '· JUSTICE OF APPEAL ., \ A.\ \ ); j i ?.' : 1 i i / ,.,, ' '/ / I. H. JUMA . . j USTICE OF APPEAL I certify that this is a true copy of the originaL r .Jlbi. F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 33 <II