Moshi Mabeja vs Republic (Criminal Appeal No. 74 of 2014) [2014] TZCA 2154 (13 March 2014)

IN THE COURT OF APPEAL OF TANZANIA' AT BUKOBA ( CO RAM: KILEQ, 3.A., LUANDA, 3,A. And n u 3 3 H ,j.w .i CRIMINAL APPEAL MO. 74 OF 2014 MOSHI MABEJA ............. . ..................... . .......... VERSUS THE REPUBLIC.. . ........................ . .......... ......... (Appeal from the decision of the High Court of Tanzania at Bukoba) fMiemmas, 3.1 dated the 12th.day of December, 2013 in Criminal Session Case No. 42 of 2013 J U D G M E N T O F T H E C O U R T 4th & 13th March, 2014 'M USSAr 3.A„: In the High Court sitting at Biharamulo, the appellant was 3 rraigned "and convicted of murder (Mjemmas, X ), contrary to section 196 of the Pena! code, chapter 16 of the laws. Th e information laid at his door alleged that on the 16th September 2009, at Nyamigogo Village, Biharamulo District, he murdered a certain Angelina Wilbard. Upon conviction, the appellant was handed down the mandatory death sentence. He, presently, seeks to impugn both the conviction and sentence. ....APPELLANT RESPONDENT

At the hearing before us, the appellant had the services of Mr. Samuel Katabalwa, learned advocate, who sought to overturn the High Court verdict upon two grounds. For his part, Mr, Aloyce Mbunito, learned State Attorney for the respondent Republic, initially, fully supported the conviction and sentence. We are profoundly grateful for the industry expended by both counsel in their submissions, but for a reason that will shortly come into light, we need neither recite the grounds of appeal nor details of counsel submissions. During the trial, the prosecution featured three witnesses as well as three documentary exhibits which included an extra-judicial statement. The trial court was satisfied that the extra-judicial statement amounted to a confession" It i£ h£fSr!£i question that the appellant's conviction was solely founded on that document. Speaking of the extra-judicial statement, the same was adduced into evidence by the prosecution at the preliminary hearing stage. Th e appellant who was duly represented did not object to the tendering and, both him and his counsel were privy to a subsequent process through which the extra-judicial statement was enjoined in the memorandum of undisputed matters.

It is, however, significantly noteworthy that, at that stage, the assessors had not been drafted into the proceedings. As it were, the lady t and two gentlemen assessors came aboard much later, at the commencement of the trial. Yet, it is not apparent upon record that the contents of the extra-judicial statement were brought to the attention of the assessors at any time in the course of the proceedings. W e say so whilst fully aware of a portion of the summing-up address by the trial M g e ; - Gentfernerrassessors and lady assessor, you will recall that I stated earlier that the prosecution produced as evidence three exhibits which were admitted during the preliminary hearing since they -"■ tffe P E r- ■ matters not dispute. Exhibit "P I" is the sketchplan o f the scene o f the incident, exhibit \P2" is the report on postmortem examination and exhibit \P3" is the Extra-judicial statement o f the accused person. You w ill recall th a t on 06*12,2013 the contents o f the sa id e xtra ju d ic ia l statem ent were re a d o u t in the co u rt : [Empahsis added] With respect, upon a thorough perusal, the detail about the contents the extra-judicial statement being read in court on the 6th December,

2013 is not borne by the record of proceedings. As it turns out, on that cf the trial court commenced its business with delivery of a Ruling i pertaining to the admissibility of a cautioned statement. T h e statement was disallowed, whereupon SSP Audax Majaliwa (PW 2) who recorded it concluded his testimony. Next, it was the turn of Asteria Mchele (P W 3 ) to testify and, the prosecution case was closed at the end of her testimony. Later, that same day, the appellant testified in defence and thereafter, counsel submissions were set for 10th December 2009, and hearing was -adjourned. Th a t concluded the court business on that day. T o say the least, there is no indication whatsoever, upon record, that the contents of the extra-judicial statement were read in court on that day or, for that 5:matter, at any time in the proceedings. Surprisingly, in his opinion which ; was spoRerv vf! W i i i f of others, the second assessor heavily gleaned from ; the extra-judicial statement: - "When the preliminary hearing was conducted the accused person and his advocate agreed admission of the accused's statement as exhibit P3. The statement was recorded by the justice o f peace voluntarily and freely. To prove that the extra- judicial statement was made by the accused person there is nowhere in his defence where he stated .

that he was trained by the police to make the statement but he claimed that he was forced b y the police to repeat what he had told the police before. The amount of money which he was to be paid and his colleague Tshs. 150,000/= after accomplishing the mission was he forced by the police to state it?..." As to how and when the gentleman assessor became seized of the of the extra-judicial statement is, perhaps, anybody's guess, but, to 2 xtent that the record of proceedings does not b eaF the fact; th e - stibie implication is that it may be that the record was not a true ction of all what transpired in court. With such a likelihood, we are d to sav. the assumed impartiality of the conduct of the entire trial is * wn into doubt. Quite apart but, equally disquieting, is the reality that is sum m ing-up address, the trial Ju d g e did not draw the attention of assessors to the salient features of the extrajudicial statement as welj what, in law, entails from the statement All the trial Judge did with oect to this extra-judicial statement, was to recite the appellant's ponse to it: - According to his evidence in defence, what was contained in the extra-judicial statement is what he

had told the police. During cross examination he stated that the justice of the peace was given the cautioned statement which was recorded b y the police and copied it He also said that he signed the extra-judicial statement by putting his thumbprint but he did not understand it Both-..Mr. Katabalwa and Mr. Mbunito were of the view that the summing-up fell short of a proper direction to assessors particularly on the ■Issue of details and the legai import of the extra-judicial statement. Thus, the crux o f the matter is whether or not, as seen from the record, the assessors were properly directed in this case. But, we think, we should,; ■5 preface our consideration of the issue with the proposition that in terms of; section 265 of the Criminal Procedure Act (CPA), it is mandatory that alt j Htrials>if(^tie High Court be held with the aid of the assessors. As regards;, the mode of accessing the opinion of the assessors, section 298(1) of the CPA is instructive: - When the case on both sides is closed\ the judge may sum up the evidence for the prosecution and the defence, and shall then require each o f the assessors to state his opinion orally as to the case generally and as to any specific question o f fact 6

addressed to him b y the judge and shalt record such opinion. By a parity of authorities, it is now settled that the foregoing provision does not, in terms, import an imperative obligation on the trial Judge to sum up the evidence to assessors. Nonetheless, whilst upholding that proposition, this Court has, throughout, endorsed the view expressed in Washington Odindo v R (1954)24 EACA 392 to the effect that it is a very sound principle to sum up the evidence to assessors V except in the very simplest cases/' (See Hatibu Gandhi v Republic [1996] TL R 12; Khamis Nassor Shomar Vs SMZ [2005] TL R 228 the unreported and; Criminal Appeal No. 216 of 2007 - John Mlay v Republic. The purpose of summing-up to assessors as well as the importance of their opinion was, again, underscored in the aforecited case of Washington Odindo v R: - The opinion of the assessors can be of great value and assistance to a trial judge but only if they fully understand the facts o f the case before them in relation to the relevant law. I f the law is not explained and attention not drawn to the salient i

facts o f the case, the value of.the assessors opinion is correspondingly reduced. The foregoing proposition was adopted in Andrea KaSinga v R [1958] EA 684, and re-affirmed by this Court in H a tib u G a n d h i (supra) and the unreported Criminal Appeal No. 61 of 2000 - Stanley A n th o n y M rem a v R e p u b lic . As to w hat amounts to a fatally in-adequate sum m ing-up was elaborately laid down in the unreported Criminal Appeal No. 290 of 2011 - Charles Lyatii @ S a d a la ¥ Republic. In that case, the Court adopted the English decision of B h a ra t v T h e Q u e e n [1959] AC 533 and also referred to the case of T y lu S jy z y a B it y r o v R [1982] TL R 264 and proceeded to hold: - Since we accept the principle in Bharat's case as being sensible and correct, it must follow that in a criminal trial in the High Court where assessors are m isdirected on a vital p o in t, such trial cannot be construed to be a trial with the aid o f assessors. The position would be the same where there is a non-direction to the assessors on a vital p o in t (Emphasis ours). 8

As already intimated, in the situation at hand, it is not patent upon record that the assessors were informed of the existence and the details of the cautioned statements. On account, it is not known as to how the second assessor, who commented on it, became seized of whatever details he had on the document. In addition, as he summed up the evidence, the trial Judge did not inform the assessors of the contents of the extra-judicial statement as well as what the document entails in law. Going by the fact that the conviction was solely founded on the extra-judicial statement, this case was, essentially, one where the assessors should have had the benefit of a careful and detailed briefing on the contents of the damning document, just as they were expected to be fully informed of its legal import. That was not done and, in such a situation, w e are unable to say with certainly that the assessors would have returned the same opinion had they been properly directed. In the premises, we cannot hesitate to hold that such was a serious non-direction on a vital and material point which goes to the root of the entire trial. The non-direction would suffice to dispose of the appeal but there was another procedural lapse that calls for a remark or two, for future guidance. This pertains to what transpired in the trial court after the Judge

had summed up the case to assessors. Upon request, the assessors retired and conferred together but, on returning to court, the second assessor commenced his address with this: - Hon. 3udg£, the following is our opinions. He then gave a lengthy address and returned a guilty verdict. The other two assessors were not asked to confirm what was said by their colleague and did not. speak individually and the trial Judge was, seemingly, contented that such was a collectiveopinion. Th e defunct Court of Appeal for Eastern Africa was faced with a similar situation in the case of Francis J u m a Musungu v R [1958] EA 192. In its construction of the expression "... and shall then require each of the assessors to state 'fits in section 318 of the Kenya's Criminal Procedure Code, the court held: - The wording o f section 318 clearly contemplates and, we think, requires that each assessor shall separately state his own opinion. I f the first assessor uses words such as were used in this case, the proper course will be to ask the other two successively whether what has been said is correct and whether they wish to add anything to it, and to record, separately, their answe 10

It is noteworthy that the referred section 318 corresponds to our section 298(1) of the CPA, Nonetheless, their lordship were of the opinion that irregularity was curable under the provisions of section 381 of the1 Code which, again, is similar to our section 388 of the CPA. In view of our finding that there was a mistrial, we need not, however, venture upon the task of curing this procedural lapse pertaining to the opinions of the assessors. As for the non-direction to assessors with respect to the extra judicial statement, we reiterate our view that the same vitiated the entire trial. We think, however, a retrial will meet the justice of the case and it is, accordingly, ordered.. DATED at BUKOBA this 10th day of March, 2014. E. A. KILEO is is a true copy of the original. ■JUSTICE OF APPEAL ' K. M. MUSSA USTICE OF APPEAL B. M. LUANDA STICE OF APPEAL Z. A !A DEPUTY REGISTRAR COURT OF APPEAL li