Michael Sprian v Republic (DC Criminal Appeal No. 17 of 1999) [2000] TZHC 479 (11 October 2000)

t.,

IN THE HIGH COURT OF TANZANIA AT MBEYA . (' . • 1,-' (DC) CRIMINAL APPEAL ·NO. 17 OF 1999 • • •, • ... • '" I ' -tf ,,,. (Original Criminal Case".Ne/'2~/1997 of the District c·ourt of Sumbawa.nga.) MICHAEL SPR:i:A.t~ THE REPUBLIC • o .o • • • • o·• o • • • VERSUS ' (' ' •·.· APPELLANT RESPONDENT ' .......... .......J . .-:,.__,,. ______ ., ______ _ JUIGMENT ... i . . The appellant is a former employee of Ms. Nim:rid Edvinsso_n (PW .l) , the corrtplainanf; For reasons which are not re:1:evant here the appellant's emploet was· brought to an end wll befere the events that le to his 1' . • prosecution occurred • .. Alse employe~ by PW .1 ana··who. were still in empioyment whe~. she w~ testifying 1 included Emmanuel Msh~ (PW .2) ! . Norbert Shiwanda and Ferdinand Mshe.na, The last two men did not testify. Before l~~;ing f•r :ba.r,.:.es-s.aJ..aam on November 12, 1997 1 PW .;t, whr, was a Church miionary·, left a sum of Shs.253,58o.oo with; Emmanuel Mshana tc.. cater . . •· for Church services. Her house was broken into on 1lt_th November, 199?.• while she was still away·· and a sum of Shs.2O3 ,58o .• OO was ston. Jt was als; alle-geci that.·the thief damaged the complainant's rr.v. screen~ ·Emmel Msh~ (PW .2) · testified that·he kept_ the money he was : .. ·~ ··~ left with, in a tabl~ drawer in the complainant's house. vJhen he reorted.. II for duty on the morning 1tf 14th N.vember, 1997,, he found the frent door . . . belted from inside. . f . . . So he went at the back t,f the huse where he found tae rear door ajar. At fi'rst· h suspected tha'.t the watchman, wh(;_ was \ . ; . . supposed te :be •n duty, "hadbn killed. There ,was no murder, the_ truth "' of the matt•r eing that th~~watchrria. was n,t:on duty as hew reguired . . ~ ·-,t• be. On. eri'j;eriag the house he found a sum •r Slte.203 ,5ei,00 missing, and .PW.2 poillted a!l·a•using finger at the a:,pel'lant who 1 ·aceording to ••• /2

2 him, could easily enter the premises e-, en though. fire3 dogs __ are·. kepi, •n the compound because the dogs are used t him~ ...s 1 was feeding them. . r "J . ·f . t • . . ·; ".i. ', .. , be for~ he was discharged. So i:Jhen the-matter.- was finally reported to the Police the appellant was arrested and his person and. ,.re.side?ce were searched., A sum of shs.100,000.,00 was recovered from his house and an additional sum of shs.7 ,000.00 was found on:·hi~ per 9on~ .. _It appears

only the bigger sum of shs.200,000.,00 was finally tendered in evidence as Exhibit P .1. Also seized from the appellant; s hGuse .i.vas a camera: an electric tester, a blanket and bedsheets which it is alleged the •. ·· '!· ·appellant failed to a.ccout for. In the ena. the appellant vias brought to l • court where he stood trial on a charge that contained five counts. He was charged with the following· Fenal Code offeJces: 'house breaking ,· 1 ."3 294 ( 1) ; stealing c/ s 265 in connection wi 0 th the sum of shs .2t!t3 ,580/=; :; . f ~ . ·' · malicious damage to property c/s 226 ( 1) in conne?tioD; with the damage . ·,· that was caused to the T.v .. screen; stealing c/s 265 in connection with .. • . ~ ~ . .( . . .. : . . a sum o'f shs20,ooo.oo and another count of stealing re;Lating to ·the • ' ,,. ' . camera, the tester,'- the two bedsheets: and one l::flet. The accused .I I 'denied complicity. .. .. It appears that in 1 the course of their investigations the'.Police ,. .. recorded a caution statement, that was made ·by the appellant. When .• the prosecution sought to produce it in evidence the appellant, rep1diated . ,·e, 'o ,,: · ·:it, alleging that it was extracted from him through torture. The •·.1·· statement was ultimately admitted after a trial within a trial. in w.iucu . ~ ' - ~ . ' .,_') ... the trial court was satisfied that the caution statement was voluntarily made,; In the caution statement' the ppellant is recorded to have ... • admitted .that he stole the sum _of shs.00 ooo.co·fr,om -tfl! residence o:f4 PW .1 on 14th November, 1997 at about 8.0i'.l •i .. m.· after ·he noticed tha_t -1.l.f}· .. fl· ., ,,. . <I' . there were' ho watchmen on the premlseso' >Jhile respond.irig to· ant)thert: · .· . , .. ·• questin• iri the course of recording his statement, the record-£!'!'t) 1 ,rs th:wi:s, .... · f ~ . !'. , . ' i ·" "SW.ALI Mboa jci ulidai :fedfi'a hiyo ni yak.a ' •• ,,. , · · ... :.;·;, · --·- ' . . ·w-·-. ' •••• /3 .. ' I tr . . .

3 kwa sababu ya biashara. · JIBU Pesa hivyo nilis~ma

• hivyo lakini siyo fedha za biashara 'bali ni fedha za mzungu bali nilighafilika tu, baada ya kuona watu wamekuwa wengi. SVJALI Kuhu.su Kamara uliiba lini JIBU Ndiyo niliiba mwakanl993 tukiwa·hapa hapa aina ya CANON ambayo ni mali -:ra mzungu SWALI Je ni vitu gani vingine ulivyo navyo ambavyo ni mali ya mzungu JIBu Sina, b_ali vyote vingine nilipewa na mzungu mwenyewe ;na wala sijaiba • .,, 11 • The appellant made his defence on oath. He denied complocity and . put up an alibi. He testifie·d ·that the. sum of shs.,20t,ooo.oo whi'ch was • recovered from his residence was his property. That sum of money, he said, was ccmstituted by a sum of shs.100 1 000.00 which PW .l· paid him when he was discharged and another sum of shs.100,000.00 he b.p.d raised from·- ,. his maize business. The camera, the blanket and the bedsheets are all his, he a.wore .. He bought them in Dar-es-Salaani from second hand cloth vendors. He also denied to have maliciously damaged the TV• • That was the ovidence upon which the appe1lant was convicted. He now appeals against conviction and s€ntence. His memorandum of appeal .. ' +-• that,,-the -convicting ;.c~ er.red in 1:.1,dmitting in . . evidence the retracted caution statement and ~onvicted him on the bas"is of that -evidence; • that th·e prosecution failed to· produce evidence upon which the appellant's conviction could be warranted; and f 3• that the sentence of seven years is manifestly e::iccessive. Mr. Materu, learned counsel for the appellant has argued the appeal ,qn. behalf of the appellant ·and Mr. Mulokozi, learned Senior State Attorney, has done so on behalf of the Republic., Mr. Materu contends that it was unsafe for the trial court to convict the appellant on the unorroborated retracted confession of the appella.llte He cites the old case l'lf ••• /4

,,. 4 ·• ' Tuwamo:i v. Uganda i99 E., 84 at page 90-91. He submits further that all the articles which were claimed .by PW.l as ·hers were not sufficiently --~~ .;. ~ ( identified as they are goods of'common manufacture, and that there was . ~ no proof of house breaking; nor did the prosecution prove the allegation that the appellant damaged the TV screen. He would up his argument ' invitin 'this Court to look into· the legality of the sentence of-seven years imprisonment to a first offender. . . . Mr •. Mulokozi, learned Senior State Attorney, argued that the ' convictions are sound as they are based on the appellant's eonfession which the tial Court found to have been made voluntarily. T.hat in addition to the confession the appellant ias found in possession of the complainant's . . ' property which he aditted to have stolen. Because the appellant was found in possession of the complainant I s prOJ)erty, pe said, it can be inferred that even the money that wa seized from th~:appllant belonged to PW.i. ·He however declined to'6ort the conviGtion in respect of the third count .. . ' t that relates to malicous damage to property because yone else could have , done so. . . ! - Now, it is fairly O9mmon ground that the appellant was convicte·d on ... • his uncorroborated retracted c;:onfession, a.i."'1d this was.1 done without the ,· trial court having warned itself of the dangers attendant 'in doing so. There was need for warning itself before acting on the uncorrborated confession because as it is clearly shown in that statement the appellant had earlier on denied stealing. The change of position from denial to confession ought npt to have; been taken lightly, specially wk;ten the appellant had complai_ned to Amina Msafiri, who t:estified as DW.3 during the trial ~uthin a trial, that he had been tortured. So the question is · whether the failure o warn itself of the danger has worked an injustice to the appellant. When the appe-•s advocate opposed the a&~ission of the caution sta- .... (" tement which contains the confession ·on the ground that it Wc."'I.S ·extracted •••/5

• "5 - from the appellant through torture the matter wa~ map.e a subject of tr.ial ·•·' - ·i wi. thin a trial. The accused testi:fied and called witnesses .to establish ·, . : ·1' .. that he was admitted to hospit~ because. he had been tortured by the -\ '··. , ... ' ·. . Police. One of _.his _w;-tne.sses, Mathias Yb_ishi (Dl.,2 in the trial within a trial) swore that the appellant was admitted to hospital because he was . . . ► •. • . . . . • under the weather· he was down with ,ma13r,.ia .. which is .infected through mosquito bites. And there was nothing in, the appelant' s admission file which the appellant and his advocate had removed from the hospital, and which • • • • j, was in their possession, contrary to procedur, which suggested evidence of • • • r1 torture. In fact ·when the .file. was ultima_te;iy tendere,d in evidence by Dw.,3, it was discovered.that some of.the documents which were supposed to be therein were missing. If ariytm,.ng t and considering. that the accus_ewi and his .. :· .. advo_cate had custody o,f the fie, it can be inferred that the dcuments which were removed from it were una':ourable to the _appellt. There was, ·there- fore, sufficten~ ev;idence upon which the trial C.Ot found that the _-confession .. . . . . r; was made. voluntarily. !r,ideed its being admitted :i, unimpeachable. ·. Tl1'e , • . ' . . confession is 1 therfore, a true admission of guilt which needs rto corrobo~~ • • • • I ration nnce the trial. court believed that it was.voluntarily made by the ·- .. appellant. And, since the appellant admittes:1- that: the variou.s- exhibits which ~ ' were Beized from him belong, to 0. the complaina?J.t __ the: qestion tht. they are ' ,. • • • z •• , • .. articles nf common manufacture-which can be oQtained.in. the opn market .,· .. does not ise any more. . ., ' itself of the da.'1.gers .convicting -<m a ret:i;-acted cnfessir,n -did not work any injusice to the appellant., I would 1. in that result, uphold the convictions , • I I • in respect of the first, second, fourth and fifth counts6 The Hepublic·has declined to support conviction in respect of the third cunt which relates to malicious damage to p:r:oper,ty p._ecause anyone other then a thief like the appellant could have been.responsible~ I agree; consequently the appeal against conviction an~ snence relating to the third count is allowed. That c?nviction is quashed and the sentence of five years , .. : . OQt>/6

• 6 imprisonment is set aside •. . : .· I n9w turn to cosider ··the appeal in relation to the sent3nces. The appellant was sentenced.to seven years imprisonment on the first coup.t; three years on each of the second, fourt? and fifth counts. It was-ordered that the sentences were to run concurrently. ¥,r. Materu submits that'the sentences are manifestly excessive. Mr. Mulokozi 1 learned Senior State Attorney, says they are justified. The record shows that·the appellcnt received the.puhishment that high because he stole from a Church M:i.'ssionary whb has come to spread the word· of God.· In my· judgment that alo.ne cannot justify such stiff i;;entences. It would have been a different mtter if he had stolen from a tplace of worship. Beca.us·e. ·the believers of God are taught to forgive I am sure. the complainant, if asked, would not have applied for such sentences when the breaking· was not accompanied by any violence~ · ,.,,. Upen the abov~ consicteration the .3.ppeal against sentence would be allowed ts· the etent that the sentence relo.ting to the.first count is reduced fr-.m seven years to· five yea..t's; the sentence in relation to each of the second, fourth and fifth c.ount is reduced so as to amount to the appellant 'o. ~ Jnunediate disharge from prison •. · Save f• the reduction of ~entence in respect of the first, seeond, fourth and fi!'th counts, the appec'J.l. si otherwise dismissed·. Convictions and the reduced sentences are upheld. On the other hand 1 the appeal against conviction and sentence in relation to the third count is allowad. . . . Hence the conviction is quashed nnd the sentence is set aside.

Judgment to be delivered by the District Registra..t' on 11th October,. .. ') J. M. MACKANJA ·.) JUDGE . 2.10,.2000 ••• /7

11/10/2000 Coram: s.v.a. Ka.rua, Ag. D.R. Appellant: Absent

• 7 - Respondent: Mr. Mulokozi, s.s.A. assisted by Mro Mkasimongwa, learned State Attorney traineeft Judgment delivered this 11th day of October, 2000 in Chambers in the presence of the above appearance and in the absence of the appellant~ Sgd-, s. V .G, Karua, Ag, D.R. ll/l0/2000 Certified true copy of the original Judgment~. AGo DIBT.Rr. CT REGL3TRAR ' "