Republic v Mbuta (Criminal Sessions Case No. 87 of 1998) [2000] TZHC 666 (12 June 2000)

48 TANZANIA LAW REPORTS [2002JT.L.R. A We sympathise with Mr Magongo ’ s request that a retrial should not be ordered as the appellant has been incarcerated for over seven years now. We shall not order a retrial. If the appellant is not otherwise lawfully held he should forthwith be set free. B REPUBLIC v. XC - 7535 PC VENANCE MBUTA c HIGH COURT OF TANZANIA ATSONGEA D (Mackanja, J.) CRIMINAL SESSIONS CASE No. 87 OF 1998 „ Criminal Practice and Procedure — Identification parade — Conditions to be observed in conducting an Identification parade — Photograph of the parade - Whether officer in charge of the case participated in the conduct of the parade - Police general orders F Evidence - Identification - Proof of identification by single witness - Surrounding circumstances - Credibility of witness The accused was charged with the offence of murder on two counts. It was alleged that he shot dead two people. During the night of 3 September 1997, a watchman of G a bar at which the incident took place, was on duty. At about midnight, two people, one of whom was armed with a gun and the other armed with a stick, came from a barbeque “ banda ” which was not lit. The two men walked into the bar and ordered all there to lie down. Then the watchman of the bar (PW1), who was outside the bar, H and the only eye-witnes, heard a loud burst of a gun. He then jumped over the fence, in the course of which he got injured, but he managed to report the incident at the police station. According to this witness, he saw the bandits from a distance of about ten metres. He observed them for one or two minutes and that the man who had the j gun was wearing a hat that almost covered his face. In cross-examination, the witness

REPUBLIC v XC - 7535 PC VENANCE MBUTA 49 was evasive and admitted that he had been frightened. At a police identification A parade, the witness identified the accused as the man who had the gun. Held: (i) Police General Order Number 231 on identification parades, was not fully complied with; the identification parade register was not tendered in evidence; there g was no evidence that the officer in-charge of the case did not participate in the parade and there was no evidence that the suspect was in formed of his right to have a friend or solicitor present; (ii) PW 1 was not all that reliable, thus making corroboration of his testimony the more vital. Accused acquitted accordingly Case referred to: D

1. Republic v. Mwango Manaa (1936) 18 E.A.C.A. 29 JUDGMENT (Delivered 12 June 2000) g Mackanja, J.: XC 7535 PC Venance Mbuta stands trial on a charge of murder. The Republic alleges that the accused and the late Lordinand Twaha Choga, his fonder co-accused, murdered two people on the F 3 September 1997. Those who the Republic alleges were murdered by the accused and the late Lordinand Twaha Choga are the late Cosmas Godfrey Lyimo and Nora Mputa. Since the charge against Lordinand Twaha Choga abated upon his death, only the accused remains charged g with the two counts of murder; that is to say one count for each of the two slain people. The accused has denied the crimes facing him. That Cosmas Godfrey Lyimo and Nora Mputa are dead is not a matter that attracts controversy. Both met an unnatural death. According H to medical evidence that was tendered by the prosecution the late Cosmas Godfrey Lyimo died of severe head injury and the late Nora Mputa ’ s death was due to internal bleeding. It is also an undisputed fact that the head injury and the internal bleeding out of which the I two people lost their lives were caused by gunshots.

50 TANZANIA LAW REPORTS [2002] T.L.R. A The events that led to the deaths of the two people I have referred to were narrated by Bosco Yustin Mbuzi (PW1). This man is a watchman at a business place called Kangaulaya Guest House. The guest house is housed in one wing of a building in which a bar is also run. The B business place is located at Majengo “ C ” in this town. He testified that in the early hours of 3 September 1997 he closed the gate leading into the guest house because it was fully booked that night. He was still awake, however, because sometimes he receives telephone calls c for his guests. He was still awake when at midnight on the night of 2 /3 September 1997 when a motor vehicle with two men on board pulled to a halt. The two men alighted and proceeded to the bar where the head of the mission asked for and was served with a beer. In D quick succession there appeared two other men, emerging from a barbeque “ banda ” which is adjacent to the bar wing of the building. The “ banda ” was not lit at that time as no more barbequing was gong on. PW1 said the banda is only about two metres from the building. The bar and banda are on the western part of the building. PW1 was then in a dimly lit corridor near the gate leading into the guest house on the eastern wing of the building. According to the testimony of Bosco Yustin Mbuzi the two men F who emerged from the barbeque “ banda" were armed. The one in front had a gun which he cocked as he cautiously advanced towards the bar. The one behind him had a stick. It immediately dawned on PW1 that the bar had been invaded by armed robbers. G PW 1 testified that he did not know these two men he only knew the two who had arrived by car, being a manager of SAMCU and his driver. He swore that he managed to observe them because there were two electricity bulbs which were lit in the area surrounding H the bar entrance. Apart from carrying a gun, the man in front also wore a hat he described as a “ puma ” hat with a large brim which covered his face up to the nose. The armed men were about six metres away from him, he said. As a result of his observation, PW 1 alleged j that he managed to recognize their body build and the clothes they wore. He said the man with the gun was short and stout with a light

REPUBLIC v. XC - 7535 PC VENANCE MBUTA 51 complection and that he wore a grey jacket with buttons he described A as “ Vishikizo vya kubana ” . The one carrying a stick was tall, slender dark-skinned and was wearing a black pair of trousers and a black T- shirt. PW 1 made his observations within one or two minutes before retreating into the compound of the guest house. Shortly thereafter b he heard the loud burst of a gun. He immediately closed the gate but in so doing he attracted the attention of the raiders who, he alleged, shouted'.Mshenzi mmoja anafungua mlango, ni nani huyo? PW1 alleged that as he stood by the gate he heard one of the c raiders shout in a sharp voice in Kiswahili: Laleni chini, au nitawafyeka “ Lie down, else I will eliminate you ” . Then he said to his collegue: “ Do our job ” Bosco Yustin Mbuzi (PW 1) could not identify who, of the two men e made the orders, swore that having closed the gate, and having observed part of what was going on, he jumped over the wall, got slightly injured and rushed to report the incident to the Police. He returned to the scene with Police Officers who recovered spent catridges. F Those who had been fatally wounded had already been taken to hospital. It seems that the robbers, who are said to have stolen a sum of TZS. 70 000 from the bar, left without trace. However, when the accused were arrested in connection with different matters on 13 September 1997, PW1 went to the Police Station to seek leave from Police authorities to see if he could recognize any of those people who were arrested on 13 September 1997, and whether they were the ones who were involved in the murder and robbery at Kangaulaya bar. He testified that police authorities refused him his request; instead H he was taken into a room where he found two other people. They were warned against talking to one another. Gaius Ndunguru (PW3) had gone to the Police Station on the same morning PW1 went there on a private mission. He was asked

52 TANZANIA LAW REPORTS [2002] TLR. A by a Police Officer to follow him into the backyard of the Police Station building where he found a number of people had lined up. He was asked to join the line which was in fact, an identification parade. PW3 was asked to choose where to stand. Having done so B and taken his position, three people were brought from the Police Station building to join the line. The three people were told to line up with those already on the line. All of the three stood to the right of PW3. According to this witness they also were asked to select c where to stand. As PW1 and the other two men were waiting in the room in which he was taken, a Police Officer went in there and told them that an identity parade was being arranged. And when it was ready P W 1 was d the second to be taken out. He examined the faces, observing one after another. In the end, he alleged to have recognized the accused. Although Bosco Yustin Mbuzi could not see the face of the man who had covered his face with a hat on the day of the murderous E mayhem, somehow he alleged that he recognized him by the face on the parade. I told the lady assessors that even though the man has long since died, it is still an important question if indeed PW1 was truthful to swear that he could recognize a face he could not see at F the scene of crime. I told them that as judges of fact they can opine on this important matter, and that if they found that he was not truthful on this matter then they should consider the rest of his testimony carefully and with caution as he may be untruthful even regarding other matters. G Now it is common ground that the accused was a Police constable before he found himself in these circumstances. Apart from his police general duties he also played football for his employer ’ s club. And jj he had just been transferred here from Tabora when he was arrested. He has categorically denied complicity in the commission of the homicides in respect of which he stands trial now. According to his version of the facts he was not anywhere near Kangaulaya Bar the j fateful night. For he has sworn that on 2 September 1997, he left Mfaranyaki area where he lived for Zimanimoto Football Stadium

REPUBLIC v. XC - 7535 PC VENANCE MBUTA 53 where his team was pitched against Mchele Football Club. He was A one of the players who were fielded to play, which, he says, he did. He, however, sprained his right ankle, so he had to be replaced. He testified that his leg swelled immediately as result of the injury and was taken to hospital on board a tax cab that was being run by Corporal b Adam. He was attended to and was given sick leave for seven days. He was unable to work for less than that time, because he had fully recovered within five days. He denied completely ever having gone out on the night of 2/3 September 1997. He could not, therefore, c have committed the offences with which he is charged. He blames his misfortunes on his economic advancement at Tabora where he ran prosperous businesses. He also claimed that it was by reason of the wealth he had accumulated at Tabora that he was transferred to this place and that it was the same reason why, when his request to be allowed to record his statement either before the Regional Crimes Officer or the Regional Police Commander it was rejected. The accused admits that he participated on a identification parade, e Immediately before that, according to him, he and the late Lordinand Twaha Choga, his former co-accused, were taken out of the remand cell and led into a CID office where they found Corpl. Musa seated with PW 1 and another man who did not testify. At that time the accused F did not know that PWT was a complainant. He and his co-accused were given back their belts and shoes which they were allowed to wear. They were then taken to the Police Station backyard where they found people had lined up. He testified that they were shown where to stand, abreast of one another. He was positioned as second on the line from his right hand side. As it now appears the man to his right was PW3. He has sworn that the late Lordinand Twaha Choga stood to his left, so he was third from the right. He said further that there were sixteen of them on the line. When the positioning of the H accused was ready, PW1 was allowed to see if his suspects were on the line. The accused said that PW1 unhesitatingly went straight to them and picked them.

54 TANZANIA LAW REPORTS [2002]T.L.R. A On his part Gaius Ngunguru (PW3) who was one of those who participated on the parade testified that PW 1 observed everyone who had lined up and picked two people who stood on his right. He identified them by pointing a finger at them. The accused said that he touched B him at the lower part of the left side of his belly. The foregoing was the evidence. It is not significant to point out, however, that the accused has alleged in effect that the identification parade was conducted in a manner that was prejudicial to his interests. c Now what must be done in order that an identification parade may conform to statutory requirement? The answer to this question resides in Police General Order Number 231. Because of its importance I will reproduce the whole of it and see if it was or it was not complied d with. It provides thus: INVESTIGATION-IDENTIFICATION PARADES

1. When it is necessary to ascertain whether a person detained in E police custody can be recognized by witnesses, the Police must ensure that the proceedings are so conducted that unfairness to the person concerned cannot afterwards be alleged, otherwise the value of the identification as evidence will depreciate considerably. At the same time the witnesses should be given full opportunity to make their identification in the most suitable conditions, and the officer in-charge of the parade should ascertain from the circumstances of the case and so conduct the parade that the witnesses ’ ability to identify is adequately tested. Thus they may be allowed to hear the persons speak, or see them with their hats on or off, or from the back of front, or in movement, or in such other way as will give a reasonable opportunity of identification.
2. Identification Parades shall be conducted as far as possible in accordance with the following rules: (a) The officer in-charge of the case will make the preliminary arrangements for the parade and shall enter the number of j persons attending the parade and the suspects in the space

REPUBLIC v. XC - 7535 PC VENANCE MBUTA 55 provided under Head number 3 in the Identification Parade A Register (PF 186). He will enter the name of the witnesses under Head number 4 of the register in the order in which they are to be called. A duplicate copy of the entries in the register will be made by inserting a sheet of carbon paper between the B original and duplicate pages. (b) Although the officer in-charge of the case may be present, he will take no part in conducting the parade. The officer conducting the parade must be an officer unconnected with the case and, C whenever possible, a Gazetted Officer. Officers below the rank of Sub-Inspector are not permitted to conduct Identification Parades. (c) At a reasonable time prior to the parade, the officer-in-charge D of the case will inform the suspect that he will be put up for identification. Any objections raised by the suspect will be noted and communicated by the officer in-charge of the case to the officer conducting the parade before it is held. E (d) If the suspect desires the attendance of a solicitor or friend, arrangements must be made for him to attend the parade if he wishes to do so. The person so attending will be required to remain in trfe background, observing only and saying nothing. F (e) The place selected for the parade should have a good light. No unauthorized persons will be permitted to attend or witness the parade. G (f) The witnesses will be assembled under the charge of a Police Officer who has no connection with the case in a room or place out of sight and hearing of the parade from which they can be called to the parade by the office conducting it. H (g) The witnesses will not be allowed to see or hear the suspect before he is put up for identification, nor should they be assisted by any description or photograph of him, or in any other way. I

56 TANZANIA LAW REPORTS [2002]T.L.R„ 1 (h) Officer who made the arrest or who took part in the investigation will not be sent to bring or notify witnesses to attend the parade and will not communicate with them before the parade is held. (i) Arrangements will be made to ensure that witnesses have no opportunity to see, or be seen by, any of the persons to be paraded. (i) There is no objection to the suspect being put up for identification c in the clothing he was wearing when the offence was committed (providing that such clothing does not show stains, marks or tears which patently distinguish his clothing from that of other persons on the parade). Alternatively the suspect may be put up for identification in the clothing he was wearing when arrested. (k) Persons selected to make up the parade should be of similar age, height, general appearance and class of life. Their clothing should be in a general way similar. E (1) The persons selected for the parade must not be known to the complainant or the identifying witnesses as identification would then have little value. (m) Police officers will not et; used to.make ud the Darade unless p the case is one in which a Police Officer is concerned as a suspect. (n) There should be eight or more persons on the parade for one G suspect; ten or more for two suspects. If there are more than two suspects, more than one parade will normally be held, with different personnel being used to form each parade. (o) When the officer conducting the parade has arrived and has H taken charge of the proceedings, the suspect will be brought cn to the parade. The officer conducting the parade will explain the purpose of the parade and will ask the suspect if he has any objection to any person participating in the parade. Any j objection raised by the suspect will be noted in the Identification Parade Register and immediate steps taken to replace those

REPUBLIC v. XC - 7535 PC VENANCE MBUTA persons to whom the suspect objects. The suspect will the. be A ' invited to stand where he pleases in the line. The position he selects will be noted in the Register. (p) Great care must be taken that the suspect is not wearing handcuffs or anything else that might distinguish him from the others. No attempts at disguise will be permitted. (o) The first witness will be called to the parade by the officer conducting it, who will explain the purpose of the parade in the hearing of those on parade and invite him or her to point out by touching any persons he or she identifies. Under no circumstances shall the witness be touched or led during his or her examination of the parade. D (p) If the witness requires any person on the parade to walk, talk see him with his hat on or off, this may be done but the whole parade must be asked to do likewise. (q) The officer conducting the parade will note carefully in his E identification Parade register any identification or degree of identification made and any material circumstances connected therewith, including any wrong identification, and any remark or objection made by the suspect. He shall ask th 6 witness f who makes the identification: In what connection do you identify this person? And shall similarly record precise details of the witness ’ s reply. No other questions are permissible. (r) On leaving the parade, the witness will be conducted to a place G where he or she is out of sight and hearing of the parade and cannot communicate in any way with other witnesses waiting or members of the F orce and will remain there under the charge of a Police Officer, who has no connection with the case, until h the parade is finished. (s) Subsequent witnesses will be brought into the parade and handled in accordance with the same procedure set out in sub-paras (q) - (0 above. I

58 TANZANIA LAW REPORTS [2002] TLR. A (t) At the conclusion of the parade, a photograph, if possible, will be taken of the parade for production in court. Care should be taken that those on the parade and witnesses are treated with patience, consideration and courtesy. B (u) The officer conducting the parade will finally check his entries in the Identification Parade Register and will sign in the space provided. The original copy will remain in the Register and the duplicate removed and filed in the Case File. C 3. The officer who conducts an Identification Parade may be required to give evidence as to the conduct and result of the parade in any Court cases that may follow. Reference may be made to the copy of page F 186 completed at the time of the parade. D 4. The officer-in-charge of the case will give evidence of the preliminary arrangements of the parade. In my considered view PGO 231 was not fully complied with. First E it was not established that paragraph 2(a) was complied with because PF 186 was not tendered in evidence. This is a form in which the officer in-charge of the parade enters the number of persons who participated in the parade. There is no evidence that the officer in- F charge of the case did not, in some way, participate in conducting the parade. Indeed the court was not told that the accused ’ s protests were communicated to the officer who conducted the parade. In addition to the foregoing, the accused has statutory rights that must be G communicated to him. According to paragraph (d) of PGO number 231, a suspect is entitled to have a friend or his solicitor present; he must be informed of this right. Another important matter that must be pointed out is as provided in paragraph (v), that at the conclusion of the parade, a photograph, if possible, will be taken of the parade for production in court. This is important because it will make it improbable for the suspect to allege that he stood at some place other than where he appears in the photograph. In order for an identification parade to be conducted as required by law Police General Order 1 number 231 must be complied with fully and to the letter. Thus evidence

REPUBLIC u XC - 7535 PC VENANCE MBUTA 59 of identification derived from an identification parade may have probative A value if the following factors as were abridged in Republic v. Mwango s/o Manaa, (1), must be present, that is to say: (1) The accused person is always informed that he may have a solicitor D or friend present when the parade takes place. (2) The officer in-charge of the case, although he may be present, does not carry out the identification. (3) The witnesses do not see the accused before the parade. C (4) The accused is placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself or herself. D (5) The accused is allowed to take any position he chooses, and he is allowed to change this position after each identifying witness has left, if he so desires. (6) Care is to be taken that the witnesses are not allowed to communicate e with each other after they have been to the parade. (7) Exclude every person who has no business there. (8) Make a careful note after each witness leaves the parade, recording whether the witness identifies the suspect or other circumstance. (9) If the witness desires to see the accused walk, hear him speak, see him with his hat on or off, see that this is done. As a precautionary measure it is suggested that the whole parade be asked to do this. (10) See that the witness touches the person he identifies. (11) At the termination of the parade or during the parade ask the accused if he is satisfied that the parade is being conducted in a fair manner and make a note of his reply. H (12) In introducing the witness tell him that he will see a group of people who may or may not contain the suspected person. Don ’ t say: “ Pick out somebody ” or influence him in any way whatever.

60 TANZANIA LAW REPORTS [2002]T.L.R. A (13) Act with scrupulous fairness, otherwise the value of the identification as evidence will depreciate considerably. As it has occurred the evidence upon which this case will succeed or fail almost entirely depends on the testimony of Bosco Yustin B Mbuzi (PW 1). This is the man who has been found by the lady Assessors as an unrealiable witness. They made this opinion when the witness asserted that he could identify the late Lordinand Twaha Choga by face even though he had earlier testified that the man he saw was c wearing a “ puma" hat with a large brim which when a telephone, call was made the Police were already aware of the incident and they had already rushed to the scene; and when PW1 returned there the slain people had already been taken to hospital. All that he witnessed D was the recovery of spent cartridges which were recovered by the Police officers who accompanied him. And, although at first he denied in cross-examination that he was not terrified, when pressed further he admitted that it is true he was E frightened. In my judgment therefore, the fearsome attack, the witness ’ s conduct and the conditions at the scene did not favour a correct identification. I am, therefore, at one with the lady Assessors that PW 1 could not have correctly identified the armed gangsters in these F circumstances. Upon considering the evidence, and having taken the opinions of the lady Assessors into account, I am satisfied that the accused ’ s innocence is beyond reproach. Consequently I find him not guilty G on each of the two counts of murder as charged. I acquit him as a result. Unless, therefore, he be further held in custody on account of any other legally justified ground, he has regained his liberty forthwith. I