Semu Jacob vs Republic (Criminal Appeal No. 99 of 2009) [2014] TZCA 2225 (3 March 2014)

.. ( IN THE COURT OF APEAL OF TANZANIA ATARUSHA ; (CORAM: BWANA, J.A; MANDIA, J.A; And _ORIYO, J.A.) CRIMINAL APPEA( NO. 99 OF 2009 ' j . [ SEMU JACOB .................................... APPELLANT t ,, VERSUS THE REPUBLIC .. ~ .......... J ............ RESPONDENT [1 (Appeal from the decison of the High C(:>urt of Tanzania t Arusha) 1 (Choch. J.) Dated the 28 th day;of January, 2009 in Criminal Appeal NO. 109 of 2006 I ------------ ' I I · JUDGMENT OfiTHE COURT DATE 28 th Feb. & 6 th March, 2014 BWANA, l.A.: The appellant, Semu Jacob, was iharged with and convicted of Rape. I· The trial Court, the District Court of 4rusha at Arusha, sentenced him to thirty (30) years imprisonment. His firlt appeal before the High Court was I unsuccessful hence this second appeal. I It was the prosecution case th 9 ,t on 27 th February 2005 at about 20.00hrs at Sakina Village of Arumerl District the appellant had carnal I I knowledge of one Spora Isakali, a girl aged 10 years then. Four 1

• • . prosecution witnesses testified including L victim of the offence who gave . I her age as being 11 years, not 10. It is worth stating at this stage th t the age of the said victim was .. . I not established by the two courts below. That issue emerged again before I this Court and we shall consider it shortly. . Before us the appellant was unJpresentecl while the respondent Republic was represented by Mr. Marcellino Mwamnyange, learned State Attorney. The appellant raised thre~ (3) major gr<;>unds of appeal. However when the appeal came up for ·hearing all the said grounds were argued together by. Mr. Mwamnyange who, in essen~e, supported the appeal. . ,1 The following main points were ra'i ed for our determination. I . Whether the age of the victim was lstablished. -· Whether the voire dire was properly conducted Whether it was safe to ground a clnviction based on the contents of the cautioned statement. • Lastly and at the Court's own ju _ icial notice, we . will consider the provisions of the law under whJ the appellant Was charged; and 2

I whether the cautioned statement is valid in terms of sections 50 and 51 of the Criminal Procedure Act, c!p 20. ~ As stated above, the age of the victim ws not established. Be it 10 or 11 ! I years, what is apparent is that she was below the age of -fourteen (14) years, thus a child of tender age, in !terms of section 127(5) of the Evidence Act (TEA). That being the pbsition, the trial court was under obligation to conduct a voire dire, comJlying with section 127(2) of TEA. ) ii The main objects of conducting a voire dire are three fold: • To establish whether the child tssess sufficient intelligence to Ii testify. The trial court has to asess that and enter a finding on ' record of the proceedings. I • To establish whether the child undrstands the duty to tell the truth . • I To establish whether the child 1 :knows the meaning of oath or affirmatio I The absence of the above, vitiates the pMoceedings. It is a settled general principle of law that all witnesses in a criminal I: case are competent to testify unless the trial court considers otherwise l ii (section 127(1) TEA). There are exdeptions to that general principle r I including incapacities resulting (as in th~; instant case) from tender age. In :1 I 3

· Nyasani Bichana versus Republic (1958) EA 90 the then Eastern Africa Court of Appeal held inter alia thus:- ' 11 •• .It is clearly the duty of the court under that section tol ascertain, firs~ whether the child tendJred as a witness I : understands the natule of the oath; . and, if the finding on tf is question is in the negative, to satisfy itself that the child is possessed of sufficient intelligence to justify the reception of I . the evidence and understand the duty of speaking the truth. J. . this is a condition preceden~ and it should appear upon the face of the record that there has ~een a due .,. . •. ,. 1.,. .... ,, compilance wit11 t11e secc.1on ... , (Emphasis provided) .. (See also: Hassan Hatibu v. R. Criminal . Appeal No. 71 of 2002; Mohamaed Sainyeye v. Republic, [riminal Appeal No. 57 of 2010; Hamis Angola v. Republic; CriminJi Appeal No. 422 of 2007; all unreported). 4

•. ' The trial court in the instant case .appears to have conducted what it calls voire dire with due respect, we are firm in our minds that it was not. This Court has, in several cases pointe~ out the format of what should d . . ". .I t· F f .d. appear on recor as a vo,re u1re examma 10n. or purposes o gu1 mg such trial courts the court has to ask tie child questions such as in the following format - (see Sainyeye case, supra). ' PROCEDURE TO FIND OUT WHETHER A CHILD OF TENDER AGE IS .I COM PETE NT TO TESTIF.Y A. ON OJ{TH

1. The Magistrate/JudJe questions the child to ascertain. (a) The age ofthe 1 child (b) The religious b~lief of the child
2. Magistrate/Judgejmakes a definite finding on thes : points on the case record, including an indication of the question asked and answer recJived.
3. If the court is sktisfied from the I investigation that the child understands thk. nature and s

obligations of an oath, the child may then be siorn or affirmed and allowed to give evidence o~ oath. 4. If the court is· not satisfied that the child ofj tender agt; understands t. e nature and obligations of ah oath it will not allow the child to be sworn or affirmed and will note this on the case record. B. UNSWORN

1. If the court 1nds that the child does nbt understand I the nature of an oath, it I . must befor 1 allowing the child to giv! evidence determine through questioning the child two things:- (a) That the 41ild is possessed of sufficieht intelligence to justify the; reception of the evidence, 'AND I : (b) That the child understands the duty· of speaking the 6

truth. Again the findings of each po}nt must be recorded o½ the record C IN CASE TJE CHILD IS I· INCAPABLE TO MEET THE I ABOVE TWO 1OINTS {A& BJ Court shoulci indicate on the i ; recor~ andjthe child should not give evii:Jence. In the instant case, as stated earliJ, the trial court did not conduct a ·I . proper voire dire. The end result of that failure is that such evidence by the victim should be expunged from the Jecord, as we hereby do. The other point for consideration is the alleged incriminating evidence resulting from the PF3 and the cautioned statement, both '· tendered during the trial as exhibits. We are in total agreement with the first appellate court which expunged t~e PF3 as having been tendered without complying with the procedure . ltd down under section 240(3) of . i the Criminal Procedure Act, Cap 20. That section provides- ':S-. 240 (1): in any criJnal trial before a subordinate courl any document 7

' . I purporting to be a repprt signed by a medical . witness. upJn any purely medical or surgical batter shall be receivable in evidence. (2). ..... . (3). .... When a report referred to in this section is received 1f evidence the court may, if it thinks fit and shall if so requested by the taccused or his advocate, summon and· examine or make available for cross- examination the pe~-son who made the report and the co~rt shall inform I the accused of his {ight to require the person who made the report to be summoned in aJcordance with I . the provisions of this subsection. (emphasis provided). The trial court did not comply with and accord the appellant this mandatory right. So the first appellate lourt was right in expunging from the record, the said PF3. The other issue that was taken ap by the learned State Attorney while discussing ground no. 2, is whe!er the cautioned statement was 8 ' I'

. ii · • properly ·obtained. He made reference to, the case of Nyerere Nyague v. 'I I. Republic, Criminal Appeal No. 67 of 20110 (unreported) for the statement · of the law ttiat a cationed statement nt objected 1:o during trial cannot I be expunged later on appeal. The obiter dictum which the learned State Attorney relies upon goes thus: I "The decision of the trial court on such matters can only be faLlted if it can be shown that the admissibn or rejection of I such evidence was objcted to and that I' it did not properly exercise its judicial ,1· . II ii . . ,1-· uiscretlon or at a11, 111n re1ecc.7ng or I admitting it .. " We have a string of authorities on the interpretation of sections 50 l and 51 of Cap 20. Since there is a grou'.nd in the memorandum of appeal which questions the admittance of the sid cautioned statement, Exh. P2; ' 1 and since the trial court as well as th~ High Court did not discover that 'I 11 the cautioned statement was taken out of time and since none of the two courts below addressed its mind to Jction 169 of cap 20, we find it ' ' ,, ' appropriate to address the issue herein[ Section 50 and 51 of Cap 20 ! govern the time factor when it comes t<l, the recording of such statement. 11 ,, According to the evidence of PW4, a fi police officer who recorded the 9 I ,

'. ' . . ' ' ' I cautioned statement, the said recording ook place on 28 th February, 2005 I . i . starting·from 10.45 am at Usa River Polid_e Station. However, according to " PW2, the appellant had been arrested on 2ih February, 2005 around 8.00 pm. By virtue. of section 50(1)(a) of capl 20, the said cautioned statement ; should have been recorded within four Hours of his arrest. That was not j the case .. Further, it is not on record toat extension of time was sought· ,I 11 and obtained for the same purpose in cmpliance with section 51 of Cap I : · 20.. Failure to do so was fatal and makes the said cautioned statement . I · inadmissible in evidence as an exhibit, having been illegally obtained . . . ' i (section 169 of Cap 20). Consequently itlis expunged from the record. I I All the three main categories of evidence having been expunged (i.e. . I the evidence of PW1, the victim; the P3; and the cautioned statement), I I I this case is left with no legs to stand on ~ it collapses. Before concluding, we would like:'. to observe, in passing, that the i i appellant had not been charged under a proper provision of the law. 11 According to the charge sheet, the appellant was charged for rape contrary Ii to section 5(2) (e) and 6(1) of the SexuI offences (Special Provisions) Act No. 4 of 1998. These two provision~, in our considered view do not !1 provide for the kind of offence that faced the appellant. They are not I' ~ 10 I I ' i I

.. enabling provisions. Instead, the appellant should have been charged for rape contrary to sections 130 and 131 of the Penal Code as amended by section 5(2) and 6(1) of the Sexual Offences (Special Provisions) Act No. 4 of 1998. All the above considered, this appeal succeeds. The conviction is quashed and the prison sentence of thirty (30) years meted by the trial court and upheld by the High Court, as a first appellate court, is set aside. We order that unless the appellant Semu Jacob, is otherwise lawfully held, he should be set free forthwith. DATED at ARUSHA this 3 rd day of March, 2014. S.J. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL copy of th 11