Fadhili Khalfani & Others vs Republic (Criminal Appeal No. 243 of 2012) [2013] TZCA 283 (11 December 2013)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: BWANA. J.A.. MJASIRI, 3.A., And MANPIA, J.A.T CRIMINAL APPEAL NO. 243 OF 2012

1. FADHILI KHALFANI
2. ALY SEIF MOHAMED
3. EUGENE DOMINIC MILLINGA ............................................... APPELLANTS VERSUS THE REPUBLIC ...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Kaduri, 3 .^ dated the 25th day of July, 2012 in HC. Criminal Appeal No. 158 of 2011 JUDGMENT OF THE COURT 27th November & 11th December, 2013 BWANA. 3.A.: The appellants were charged with and convicted of the offence of Armed Robbery contrary to section 287 A of the Penal Code. The trial court, the Resident Magistrates Court at Kivukoni, Dar es Salaam, sentenced them each to a term of thirty (30) years imprisonment. Their first appeals before the High Court of Tanzania at Dar es Salaam were unsuccessful, hence, this second appeal. l

Before us the appellants were unrepresented while the respondent/Republic was represented by Ms Rose Chilongozi, learned 'Senior State Attorney. The appellants filed a lengthy joint memorandum of appeal but which, for purposes of convenience, touch on the following three major points:- • That they were not adequately identified - evidence of visual identification did not remove all possibilities of mistaken identity and that both the trial court and first appellate court erred in law and in fact in holding differently. • That the cautioned statement was not correctly recorded and it contravened the provisions of the law. • That both the trial court and the first appellate court erred in law in invoking the Doctrine of Recent Possession to convict them. Briefly, the facts leading to this case are as follows. Hussein Abdallah, PW1, is a taxi driver. He used to park his taxi at Shekilango Road Taxi Stand. On 5th March, 2009 around 9:15 p.m., the first appellant, Fadhili Khalfan, hired the said taxi to take him to Mburahati. Across the

road, i.e. about 50 metres away, there were two other men, whom Fadhili is said to have introduced them to PW1, as his companions and that they were on the same trip to Mburahati. After agreeing on the fare, the first appellant took the rear passenger seat behind the driver. The second appellant, Ally Seif Mohamed, took the front passenger seat. The third passenger took the other rear seat. Upon arrival at Mburahati, suddenly the first appellant held up PW1 by the neck from behind while the other two passengers held him up by his feet and attempted to force him out of his seat/car. On resisting, it is said that then the second appellant took out a pistol and pointed it at PW1. The latter had to surrender the car in order to save his life. The robbers drove off. PW1 then reported the matter to Magomeni Police Station. The following day, that is, on 6th March, 2009, at about 11:00 hours, PW1 saw his stolen vehicle about 500 meters away, with four people in. He alerted the police and a chase ensued. None of the people in the car was arrested as they abandoned the said car and ran away. On 1s t April, 2009 while at the Magomenti Police Station, PW1 saw the first appellant

together with another person under police arrest. He identified them and reported to the police. All the three appellants denied to have committed the armed robbery. In her address, Ms Chilongozi supported both conviction and sentence. She invited us to hold that the appellants were adequately identified by PW1 as there was sufficient light. She categorized the light as being that from the dash board of the material car; the front head lights and street lights. She requested us to invoke the provisions of section 122 of the Tanzania Evidence Act in upholding the conviction. Further, that given the time PW1 spent with his robbers - from the time of negotiating the fare, then all the way that the four people were travelling in the same car from Shekilango to Mburahati - it was long enough to note their identity. Ms Chilongozi further submitted that upon their arrest, the appellants confessed that they were indeed the people who robbed PW1 on 5th May, 2009. Their oral confession is admissible although the cautioned statements was not correctly recorded, asserted Ms Chilongozi. 4

Ms Chilongozi also addressed us on the doctrine of recent possession and submitted that it was applicable in this case. She was of the view that the first appellant had admitted that he was the one who was driving the stolen car on 6th May, 2009 before abandoning it upon realisation that they were being chased by the police. That short time frame, that is, from the time of robbing PW1 at around 9:30 p.m. the previous night to being seen driving that stolen car the following day at around 11:00 a.m. creates the necessary nexus to invoke the doctrine of recent possession. As stated earlier, the appellants denied any involvement in the commission of the offence. We will now examine their grounds of appeal. We start with the issue of visual identification. The position of the law on the subject of visual identification is well settled in this jurisdiction. It is the law that in a criminal case where determination relies essentially on visual identification, evidence on conditions favouring a correct identification is of utmost importance (Raymond Francis vs Republic (1994) TLR 103 adopted). The interpretation of those conditions must be objective, not subjective (Emanuel Luka and Others vs Republic, consolidated Criminal Appeal

No. 4 of 2008,’ considered). Objective because the court has always to bear in mind the ordinary conditions under which a person of a class to which the witness belongs, lived or was subjected to and how he would perceive the traumatic situation he went through during the robbery. The court should not invoke the subjective test, that is, it should not consider the standards to which the trial judge or magistrate live and how he/she would confront the robbery given his/her perception of life in society around him/her. Further, it is now settled that using the objective test, the court should address itself as to whether the following pertinent conditions did exist so as to eliminate all possibility of mistaken identity of the appellant. The said conditions include but are not restricted to the following. First, the time under which the attacker was under observation by the victim. Second, under which condition the victim did observe his/her assailant - were they under normal rapproach or confrontational. Third, the distance between the two - did it allow outright recognition/identification of each other. Fourth, if the robbery (or the crime with which the appellant was convicted) took place at night, what was the lighting condition at the scene

so as to allow clear identification. That is, what kind of light did exist (e.g. electricity, lantern moonlight etc.) and what was the intensity of the said light at the scene of crime. Fifth, whether the victim knew his/her assailant before the material day and time and if so, for how long has he known his assailant. Sixth, in the course of observation, was there any obstruction/impediment so as to distract the victim. And the like. (The cases of Waziri Amani vs Republic (1980) TLR 252; Mathew Stephan vs Republic, Criminal Appeal No. 16 of 2007; Musa Abdullah vs Republic, Criminal Appeal No. 36 of 2005; Gerald Lucas vs Republic, Criminal Appeal No. 220 of 2005 - all considered). The court should satisfy itself affirmatively on those points and other relevant ones, before it convicts an accused person basing on visual identification. It is necessary to do so because, evidence of visual identification is susceptible to error. Such evidence has, therefore, to be watertight and must exclude all possibility of mistaken identity. The aforegoing considered and analysed in the circumstances of this case, the following points emerge in our analysis of this appeal. First, it is not in dispute that the crime was committed at night therefore, the question of

light and or its intensity is of paramount importance. In our considered view, PW1 had three obvious "opportunities" from which to identify his assailants. The first such "opportunity" was at Shekilango Taxi Stand when he was hired. The second was in the course of their drive from Shekilango to Mburahati - quite a distance, during which time all the four - PW1 and his attackers were in the same vehicle. Ms Chilongozi describes this time as "zero distance" hence giving PW1 an opportunity to interact with his "passengers". The third "opportunity" was at the end to their trip at Mburahati, characterized by confrontation and armed robbery. In all the three "opportunities" no clear description of the lighting condition is given by PW1, the key and only witness on this point. Nothing is said about the lighting condition at Shekilango. We can therefore assume that it was dark. PW1 states in passing only that he could identity his assailants by use of dashboard light of his car. One would wonder how PW1 could use that light to identify those seated at the rear seats of the car. We remarkably note that he did not give any description of the intensity of that dashboard light. In our considered opinion that was a fatal omission. 8

The third opportunity, at Mburahati, equally lacks proof of the lighting conditions. Further, it is PW l's own averment that he stopped the car at an open, sandy space. The nearest people were about 500 metres away and offered no assistance. Therefore, there was no proof of light either. We can as well hold that it was dark. Ms Chilongozi invited us to invoke section 122 of the Evidence Act. She further suggested to us to agree with the decisions of the lower courts that there was sufficient light to enable PW1 identify his assailants. She raised other issues which may conveniently be categorized as evidence from the Bar, thus inadmissible. In the absence of proof beyond reasonable doubt, as the standard of proof is in a criminal trial, the court should avoid making inference to the existence of any fact which it thinks likely to have happened, the provisions of section 122 of the Evidence Act notwithstanding. Particularly in the instant case, a mere assumption or making inference as to the state of lighting at the material points would be, in our considered opinion, prejudicial to the appellants.

We have given considerable thought over the issue of identification based on the light conditions prevailing at Shekilango, in the car and lastly, at Mburahati. It is our considered view therefore, that there is no sufficient evidence in support of the findings of the trial court as well as the first appellate court on this issue. There is no evidence by PW1 on the condition of lighting at Shekilango. Regarding the 2n d and 3rd appellants, he says he identified them by way of his car's head light. The two are said to have been about 50 metres away. He says nothing about the dashboard light that may have helped him to identify the two appellants at the "zero distance" position. We are not told for example, for how long were those head/front lights directed towards them. Given the conditions at Mburahati, we are all in agreement that there was no lighting at the scene of the robbery and further that the struggle that ensued between PW1, on one side and the assailants on the other, did not offer an opportunity for positive indentication. The above considered in its totality and guided by the principles of law discussed herein before, we have come to the conclusion that visual 10

identification of the appellants was not watertight. All possibilities of mistaken identity were not eliminated so as to implicate them. Following the foregoing conclusion, we would end here and allow the appeal. We however, find it pertinent to consider, albeit briefly, the other two grounds of appeal. One, other such ground is the Cautioned Statement. We do concur with Ms Chilongozi that the said statement was not correctly recorded and therefore, it should have not been used to ground convictions against the appellants. The final ground of appeal 'that we would like to discuss herein concerns the application by the trial court of the doctrine of Recent Possession in grounding convictions against the appellants. Again, the law on the doctrine, is well settled. The doctrine evolves around proof that theft (or robbery) has taken place and that soon thereafter the accused is found in possession of the said stolen property. Such possession leads to a necessary inference being drawn, implicating the one found in possession thereof (Alex Thomas vs Republic, Criminal Appeal No. 230 of 2011; Ally Kinanda and Others vs Republic, Criminal Appeal No. 206 of 2007

• both adopted).

Two important factors constitute the doctrine: time and possession. Archbold (2004 Ed) at p. 1924 para 4 states:- "The rule o f recent possession is where it is proved th a t ..... .....property stolen and that very soon thereafter, the defendant is found in possession o f the property .......... this o f course applies equally to thefts other than in the course o f burglary, whether a pick-pocketing or armed robbery." * The time factor depends on the circumstances of each case. It may be a few hours or some days after commission of the offence. In the instant case the armed robbery was committed at about 9:15 p.m. and the stolen car was seen being driven around 11:00 a.m. the following morning. In the circumstances of this case, therefore, the time factor was within reasonable consideration. Possession of the stolen property is very crucial in this case. Apart from the evidence on record by PW1 and PW2, that the car was seen being 12

driven with four people therein and that upon realising that they were being followed after by the police, the four occupants in the car abandoned it and fled. None of them was captured after that chase. PW2 convinced the trial court that during the chase, he managed to identify the first appellant as being the driver of that stolen car. PW2 however, admits that he was several feet/metres behind the first appellant and that he had not known him before. Under those circumstances and given the fact that it is not easy to identify someone while chasing him some distance from behind, we find it unreliable that PW2 could identify the first appellant without a possibility of mistaken identity. Further, since it is not proved that the first appellant was the one driving the stolen car, his possession thereof could not be established. In the absence of proof of possession of the stolen car, none of the appellants could be convicted of armed robbery based on the doctrine of recent possession. It should be noted as well that none of the other two appellants were identified as being in that car, that morning of 6th May, 2009. 13

All the above considered, in conclusion, we allow the appeal, quash the convictions and set aside the sentences imposed by the trial court and upheld by the first appellate court against the appellants. We further order that unless they are lawfully held, they be set free forthwith. DATED at DAR ES SALAAM this 5th day of December, 2013. S. J. BWANA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W. S. MANDIA