Edwini s/o Andindilile vs Republic (HC Criminal Appeal No. 42 of 1999) [1999] TZHC 293 (3 December 1999)

., , • I .. ,. .. MOSHI, J. ,1 . IN TrIE UGH COUHT OF ;1 1 ANANIA )i ii.IGH COUi1'.i.' CiU!HNAL APPBXL NOo iJi-2 i'oF 1999 •i I ,, (Original Criminal Case N0. 259 of 1'998 ·of the District Court of ilungwe District at' 'lukuyu h ': Before; F .• N. Matogolo - Distridt r·iagistrate) ; EDWINI S/0 ANDINDILILE ••. , ., " •• ? " " •i• . " 1 AFPELLANT Versus· \·' 'rHE REPUBLIC ,, ' .., o n .) o o e, ,:, o o o t• c 'l o ;;- o o > o o 1 .:. o o JESPQiDNT ' ____ .....,.,. . .,,..+..,......__ . ....,;....,..-i:--·.-·- JUDGI'iENT 'I'he district court of i:?ungwe district at Tukuyu sentenced the appellant 1 l ,.i Edwini · Andindilile, to the statutory minimum, imprisonment terrn-·of thirty years ' . i ' consequent upon a conviction for rtape, contrk:-y ',to sections 130(1)' and (2)(e) and 131 ( 1) of the ?enal• Code, as amended by the 1 Sexual Offences Special Provisions Act lfo. 4 of·· 19980 ·rhe. coniction and sentence aggrieved him, and his learned' advocate, l'•1r. Mkuinbe, was not resisted by 'the Republico ·[ preferr.ed and argued this app.~~ which . . f . ;~ Ii I Bahati d/o Asajile (P\·J4), aged 11 year~ 1 was in standard VI at Iluwe --. prj.niary Schoolo She was the victim of the offence. Hers was the only • I evidence that she was raped by the appellanto• Her evidence WaB not corro- 1 borated in any material, particular by any· otner evidenceo Of course in I ·,' ,iterms· of sub-section (?) of section 127 of thJ Evidence Act 1967 introduced • , r • ~ . -:. " 1., •' · ·by· Act Noo 4 of 199c.1 the 'trial· court could cori.vict the e.ppellant on the • , . ~ t : · u·neorroborated evidence. of PW4 · if for reasons to be recorded in the j, .·.:.' I I • proceedings the cou1t was satisfied that she \·ias telling nothing but 'the ' ' . trutho In this case, however, t.he trial was fainted \rlith two irr-eularities in matters of law raised· by ;ifr. i~kumbe, and conceded by the learned state (1· ' attorney, Fir. Hangela; ·which were fatal to the 1 co~v1ction of the appellant • . j'. Firstly 1 the evidence-· of P\1/4 was not addf ced in proceedings conducted .in camera as required under subsection (5) of section 3 of the Children and ' Young Persons Ordinanee Cap. 13 introduced ·by s 1 ection 28. of Act No. 4 of 1998., ~ ? t ''"' .. e O • C O O t • • e e /2

... ,, .. 1,,. ,; ,. • I •• • ~ •• which reads: ' 28. The Children and Young .. },erons · Ordinance is hereby amended in section 3 by adding. irnm_ediately after subsection (4> the following: •!·. · · .-, (5) ;•ihere a child of less than eighteen,; years of age is a witness, a victim, ·an--· accused or a co--accused in a c·a.se involving a sexual Offence, the child shall. be tried in camera and separately from the adult co-accused or the evidence of the .. ,. child sht:1.ll be adduced in proceedings co_nducted in camera"" The foregoing provisions are couc1.1ed in mandatory terms, and PW4 was not only a child of less than eighteen years of age but a child of te~~~~ years in terms of sect iori 127 (5) of : the Evidence Act aged eleven years. I agr·ee •with both ·, le'arried cotinel that at that age ti1e . .-.~xposure in the open court had greatly . ' . .,[--,.. prejudiced P.-.JL1. in her evidence in that she was denied the freedom of expression envisagd unaer·:•section 3(5) of Cap. 13.. She could not ·be saLct'°'fo have given her evidence freely and without inhibitions. I Secondly, P·Jf+ was sworn and gave evidence before a voire dire examination .•• :f#. was conducted., 'l,his was an error at law. .Sectip_:p 127 (2) of the Evidence Act · ~qiiires the holding of a voire dire examination before swearing in a child of tender years. It_ is . the legal duty of a trial magistrate or judge under section 127(2) of the Evidence Act to ascertain by a voire dire examination before a child of tender years gives eviden9e, lirst, whether he understands . \ the nature of. an oath. If yes, the child should be sworn.. If not, the· magistrate or, judge sh-.uld then, '!l, proced to satisfy himself as to the child I s intelligence and understanding of. t:he dμty of Eipeal5::~ng the truth. If yes,- the evidence can be taken unsworn. Only after being satisfied on these matters, and recording his satisfaction in he record of proceedings, can a magistrate or judge receive a child's evidence sworn or unsworn, affirmed or unaffirmed. . Omission to conduct a voire dire examination before swearing in a child cif tender years, as was the case here, has the effect of bringing_ that evidence to the level of unsworn evidence of a child, and, therefoe,- needs corroboration to suppo_rt a conviction<.:.... SEE Court of Appeal . ~,: ,:·:; .. , .( /3

G"l'7i)11WEQ4 3 ' 11 ,I i' II decision in Francisc.£1:!.atovu_V.R. (1961) .A. ?60J Such corroorative evidence 'I ' lacked here. On the authorities, a convicion 1 jmay' be sustained despite the '1 ;1 non-compliance with the statutory rules for th admission of the evidence of ! child witnesses p1°ovided there is other suffic~:ent evidence on record to supper~ ! ~. i .! the conviction --· S.t!iE Court of Appeal decision ,in I.Jyasani s/o Bichana V.R~ i' ,I I h • (1958) E.A. 190. In this case, there was not sch, other evidence, let alone sufficient evidence, in support of the convictfon) For the foregoing reasons, therefore, this appeal must be allowed. I The learned state attorney asked this court to order a retrial. But the ' circumstances of this case do not justify a ret)ial. I' I'he Court of Appeal _for Bast Africa set out the principles for ordering,• or not orqering, a retrial ·1 I in R'.a.:ehali JJanji_V .R •. - ( 1966) E.A. 343. They are the following j i1 ,;In general a retrial will be ordered 1 only when the original trial was illegal or defectiy 1 11 I, It will not , 'I 'I • be ordered where a conviction is set aside because of I insufficiency of evidence or for the ptrp6se of enabling I, 'I ,, the prosecution to fill up gaps in its:. evidence at the I • • first trial. Even where.a conviction is ,htiated by a . ( ' . mistake of the trial court for which te prosecution • ~ I I is not to blame, it does not necessariy fnllow that a retrial should be ordered. Each casJ· nnist depe;.1d on its particular fa~ts and circumstances ,' 1 , ~ 1 d an order ·I for retrial ·should only be made where the interests ,i . of justice require it, and should not he ordered where it is likely to cause an injustice to the accused person. :i l I I ,I In this case 1 the original trial, as explained, was not only defective 1,' I I' but the conviction of the appellant was founded ori insufficient evidence. A ·I ,: new trial, therefore, would enable the prosecution'. side to lead evidence which I it had not led at the original trial prejudicial tb the appellant, that is to 'I say, a retrial would, in the circumstances of this 1 case, enable the prosecution 'I : . ~l. !;I side to fill up gaps in its evidence at the first trial. I ap1, in consequence 1 I satisfied that to require the appellant to stand trial again would, in all the circumstances, be unfair and unjust. ' I . i' • •-00000 ooo • P" a oo• ooo ,, I ,, ' I I! I •I It /4

. ~ ·~-~~~ ... F rn419;;z (:'4,W , ' ,. I. · .. _..,.,. ~- ,. I accordingly allow the appeal, quash the conviction, set asid.'3 the sentence, and hereby order immediat·e release of · the appellant f::.om prison, unless otherwise·lawfuliy heldo (' · .. ,. B.P. MOSHI JUDGE id: hBEYA. 3 December 19990 For Appellant : JV;r. Mkuriib e • . l<'or Republic Hr. ~:ulokozio I CERTIFY 'i'HA'l' .THU; lb ii TRUE COPY OF '111:B ORIGIN.AL. f