Michael Sprian vs Republic (DC Criminal Appeal No. 17 of 1999) [2000] TZHC 257 (11 October 2000)

A { D IN THE HIGH COURT OF TANZANIA AT MBEYA (DC) CRIMINAL P.PPEAL NO. 17 OF 1999 4 (Original Criminal Case N.. 27/1997 ' of the District Court of Surnbawaiiga) MICHAEL SPRIAN . * a... • ••• APPELLANT : VERSUS THE REPUBLIC RESPONDENT

JUEGNT MACKANJA . ' • The appellant is a former employee of Ms. Nirnrid Edvinsson (Pw.i), the complainant. For reasons which' are not relevant Iiere the appellant! employment was brought to an end well bef.re the events that led to his prosecution occurred. Also employed b PW.l and who were :still employment when she was testifying, included Emmanuel .Mshana (Pw.2), Norbert Shiwanda and Ferdinand Mshana. The last two menU did not testify. Before leaving for Dar-es—Salaarn on'November 12, 19971 'W1,.who was a, Church missionary, left a sum of Shs.253•,580.00 with Emmanuel Mshana to cater for Church serrices. Her house was broken into on 1th November, 19971 while she was still away, and a sum of Sh6.203,580,00 was stolen, It was also alleged that the thief damaged th complainants T.V. screen. .EmmanuelMshana (PW'02) testified that' he ket the money he was left with, in a tabLe drawer in the cornplainants hcuse. when he repprte for duty on the morning 'of lkth Nvember( 1997, he found the front door belted from inside 0 So he went at the hack rf the'huse where he found the rear do.r ajar. At first he suspected .that the watchman, wh was supposed to be 'on duty,' had b'..ñ killd. There was - no murder, the truth of the matter being that ' ~ h p:' w6Ltchmax wa n o t on duty as he was requrred t. be. On enteri*g the house he found a sum of S ,23,5.MO missing, and the,,V, seieex pierc.d, PW.2 poiited ' am clioeu ' sing.finger at the ape11ant who, aceording to

2 him, could easily enter the premises even though fier3 dogs are kep'b on the compound because the dogs are used to him as, was feeding them 4 4 .0 before he was discharged. So when the matter was finally reported to the Police the appellant was arrested and his person and residence were searched. A sum of shs.100,000.00 was recovered from hi's house and an additional sum.of shs.72000.00 was found on his person. It appears only the bigger suni'5fshs.2OO,OOO.00 wasfinally tendered in evidence as Exhibit P.1, Also seized from the appellants house was a camera, an electric tester, a blanket and bedsheets which it is alleged the appellant failed tp account for. In the end the appellant was brought to ourt where he stood trial on a charge that contained five couns He was ôharged with the liowing. Penal Code offences: house breaking ' 2911 (l); stealing c/ 265 in connection with the sum of shs203,580/=; frialicious damage to property c/s 226 (1) in connection with the damage that was caused.to the T.. screen; stealing c/s 265 in connection with a sum of shs.20 1 000.00. nd another cpunt of stealing relating to the camera, the tester, thp twp hedsheets and one blanket6 The accused denied complicity. • It appears that.in.the course of their investigations the Police 0 iooded 'a caution statement that was made by the appellant • When the prosecution sought to produceit in evidence the appellant repudiated 'a: 0 , ' alleging that' it was extracted from him through torture • The •statement was, ultimately adntted aftr a trial within a trial in Wci 00 the trial.court was satisfied that the caution statement was voluntarily m.de. In the caution statement the appellantis recorded to have 0 admitted that he stolethe sum shs.O,OOO.00 from the residence of PW.l on 14t1 November, 197 at ao.it, 80e)a,m after he noticed that • •.. ti&'e e .wchmen Qn the premises. While responding to another P00 03

• 0 fo questiAn in the course of recording his.tat.ement, the record shows this:— • , 'r :-- • •. S..'r 0 MboM. jarjga,. -4idai fahiyo niyako , .13

-3-.. kwa sababu ya biashara. JIBU Pesa hivyo nilisema hiiryo lakini siyo fedha za biashara bali ni fectha za mzungu baJi nilighafilika tu, bàada ya kuona J watu wamekuwa wengi. SWALI Kuhusu .Kame.ra uliiba lini JIBU Ndiyo ni.li-iba mwaka 1993 tukiwa hapa hapa ama ya CANON ambayo ni mall ya mzungu SWALI Je ni vitu gni iiingine ulivyo navyo ambavyo ni mali ya mzungu JIBE Sina, bali vyote vingine nilipewa na .mzungu mwenyewe na wala aijaiba ...'. The appellant made his defence on oath. He denied cothplocity and put up an alibi. He testified that the sum of shs.20(,000.00 which was recovered from his residence was his property. That sum of money,hd said, was constituted by a sum of shs.100,000.00 which PW.1 paid him when he was discharged and another sum of shs • 100,000.00. he had raised from - his maize business. The camera, the blanket and the bedsheets are all his 1 he swore. He boughtthem in Dar—es—Salaamfrorn second hand cloth vendors. He.also denied to have maliciously damaged the TV. That was the evidence upon which the appellant was corrvioted. He now appeals against conviction and sentence His memorandum of appeal •ontains three grtunds naje1y- that the convicting .court exred in dmitting it evidence the retracted caution statement and 'convicted him on the basis ofthat evidence; that the prosecution faile.d to produce evidence upon which the .ppe1lant's conviction could be warranted; and that the sentence of seven years is manifeâtly excessive. Nr. Materu, learned counsel for the appellant has argued the appeal n 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 appellant. He cites the old case rf I •

H Tuwamoi v. Uganda Fi ci6f E.A. 84 at page 90.91 He submits further that all the articles which were claimed by PW.1 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 argnment inviting this Gourt to look into the legality of the entene of seven years imprisonment to a first offender. Mr Mulokozi, learned Senio' State Attorney, argued: that the 'convictions are sound as they are based on the appellant's .onfession which the trial Court found to have been made voluntarily. That in addition to the confession the appellant was found in possession of the complainant's property which headmitted to have stolen. Because the appellant was found in possession of the cornplàinaiit's property, he said, it can be inferred that even the money that was seized from the appellant belonged to PW.l. He however declined to support 'he conviction in respect of thethird count that relates to malicous damage to property because anyone eThë could have dons so. Now, it is fairly common ground that the appellant was convicted on his uncorroborated retracted confession 1 and this was done without tie trial court having 'warned itself of the dangers attendant in dbing so. There was need for warning itself before,acting on the,uncorrAborated confession because as it is cleaxly shown in that 5tatement the appellant had earlier on denied stealing. The change of position from denial to confession oughtnot to have been taken lightly, specially when the appellant had complained to Amina Nsafiri, who 'estffied as DW.3 during the trial within a trial, that he had been tortured So the' questioti is whether the failure to warn itself of the danger has worked an injistice to the appellant. When the appellant's advocate, opposed the admission of the caution sta- tement 'which thntains.the con'fession on the ground that it was extracted

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from the appellant through torture the matter was, made a subject of trial within 'a trial 0 The accused testified and called witnesses to establish that he was admitted to hospital' because he had been tortured by. the Police. One ofhis witnesses 1 Mathias Kibishi.(DW.,2..ir the trial within a trial) swore that the appellant .was admitted to hospital because he was undex the weather he was down iithmalaria which is infected through mosquito bites. And there was' iothing in the appellant 1 a admission file which the appellant and his advocate had removed from.the hospital, and which was in their'possession, confrary to procedure, which suggested, evidence of torture. In fact whenthe file was ultimately tendered in evidence by it was discovered that some' of 'the documents which were supposed to be therein were missing. If anything, and considering that the accused and his. advocatehad custody of the file, it can be inferred that'the ,documents'whicb were renoved from it were unfavourable to the appellant., There was 1 there- , suffi.ient 'evidence upon which the trial Court 'found that- te confe on 'was made voluntarily. Indeed its being admitted is unimpeachable. The, confession is 1 therefore, a true admission of guilt which needs no corrobo- ration 'ôtice .the trial court belive.d that it waA vountarjly made by the. appellant. And, since the appellant admitted that the vous exhibits which 0 were seiz'ed from him belong to the complainant the question tat they are articles of common manufacture which can be obtained ii,the open market does not..arse any more., In the result I hold that L' - . omssi n by '&iie u:t tu itself of the dangers convicting on a retracted cofessin did not wqrk, any injustice to the appellant. I would, in that result, uphold the convictions in respect of the first, second, fourth and fifth counts 0 Theepulic has declined to support conviction in respect of the third cunt which relates to malicious damage to property because anyone other then a thief like the appellant could have been responsible,, I agree; consequently the appeal against conviction and sentence relating to the third count is allowed. That 'eonviction is quashed and the sentence of five years V

-6- imprisonment is set aside. ' I now turn to consider the appeal in relation to the sentances. .e. appellant was sentexiced to seven years impriscment on they'. first..,count; three years on each of the second, fourth and fifth counts. It was ,ordered that the sentences were to rtn concurrently. Mr. Materu submits t1at the sentences are manifestly excessiv. Mr. Mulokozi, learned Senior $tate Attornoj, says they are justified. , The record shows that the appellant received the punishment that bigh becaüsehe stole from a 'Church Missionary who has come to spread the word, of God. In my judgment that alone cannot justify such stiff sentences. It ü1d have been a different matter if he had stolen from a place of iorship. Because the belie'vers of God are taught to forgive I arii sure the complainant, if asked,.would.not have applied for such sentenceswhen the breakin wa not accompaiiied by any violence. Up.n the' above consideration the appeal against 5entence would be allowed to the exent that the sentence relating to the first count is reduced frm 'seven year' 'tO five yearC; the sentence in relation to eachpf the second, fourth and fifth counts is 'xeduced so as to amOunt to the appel1att immediate disehare froth prison. • Sve fir tI'ie'reduction Of sentence in respect ofthe .fii'st, seeond, fourth and fifth counts, the appeal si otherwise dismissed. Co'ivietions and the reduced sentences are upheld. On the other hand, the appeal against conviction and sentence in relation 'to the third count is allowed. Hence the con'iction is quashed and the sentence is set aside. Judgment to be delivered by the strict Registrar on 11th Otober 1 2000 w ' ---- V V , J. M.' MACK1\NJA /!! V •:\ 'V • V t•. I • V ' V ' •:./ 2610m2000 V V •:; V •V,.VV / 11

-7w. 11/10/2000 Corafl, S.V.G. Karua, Ag, D.R. Appellant: iTheent Respondent: Mr, Mulokozi, S.S.A. assisted by Mr 0 Mkasimongwa, learned State Attorney trainee, Judgment delivered this 11th day of October, 2000 in Chambers in the presence of the above appearance and in the absence of the appellantA Sgd .S.V.G. Karua, Ag a D,R, 11/10/2000 Certified true copy of the original Judgment AG. DITRI CT REGIISTRAR MBLYA