Andendeckisye Mwampyate and Another vs Republic (Criminal Appeal No. 58 of 1996 C/F 59 of 1996) [1999] TZHC 462 (22 November 1999)

, ! I I \ ., ·'."~ •·lh • ."· ·,, .. : ,,; Ll b s· .J\'.~ JS:fi~.:·,_s IN 'rP...E HIGH CCUR'l1 OF TANZ.[u'lfIA 1\T MBEYA CHIMINAL ),.} PEJ'-\L NO, 58 CF 1996 C/F 59 O:F' 1996 (Originating from Rungwe District Court at Tu.Li:uyu in Criminal Case Ifo o 173 of 1995) 1 0 1.NDEND:CKISYE MhlJ\JV[Y.i..TE ) Al'\JDAL\vI.SYE _,\NY'ZL\vISYE Versus ) ) 0 O O O O (' 0 0 0 ¢, O O o,o o O O O O O 0 JUr.GHSNT APPELLAN'l'S RE;:.I--'ONDENT .. I· consolidated the heru.·ing ·of these two ·appeals. The first and second ··-c.. ..... - appellants, ·AndencJ.ekisye r 1 fwampyate and A:rdal wiqye. Any el wis;ye, and three other persons, Zefa :Ka,:jamba @ Zephania -Kajamba, John Kandonga Niupy and :Soornon l\iwa-- -; ft njaglle,' :,ere' joliitly arraigneo.'';before the dis'frict court of Tukuyu as fir_st, .tJJd, 2£, .f<?.-urt.ti, and .,f:L~-0, ac.cuseds respectively,, on an indictment containing three counts. The .. f.!E& courit was for .all, whilst the setcon.d count was for the sco_ri,9-_ accused only, and the _thi.£.C! count was J for. the _fifth accused only o 'i. 1 he t!.1ree counts were; _F_i_rJ_tmS() (for all): ltobbery with violence, contrary to sections 285 and 286 of the Penal Codeo ! !3.€).C:.??A.cg.t ( for second. accused): Hape, contrary to sections 130 and 131 of the fenal Code. 'r,aj.f.£i . . c<rnp!; ( for fi ftli accllsed) : lecei ving Stolen 1-iroperty, contrary to section 311 (1). of the lemtl Code •. 'rhey all pleaded'.not guilty to the:i:r respective counts an_d, after a trial, the .f:!..ft_h accused was acquitted· of both the .f.r~~ and -~~£d coui1ts, while the 3?.e_co?-c!. accused was a•qui tted of the iSco_il_g count. However, both· appellants, the second ed. and the fourth accustl. were convicted of the ... , .-:--...- .. " ..,,+"'r> ~ .,.,..,__ • - fi!.>t tmt, and each sentenced h the 1andatory. minimwn imprisonment term -f .:t:iJ..~~ y-aars.· It appears tha th i_ew~g. and uE. accuseds are 3et to appeal. -But·the conviction and seittenye aggrieved both ':3-PPellants, hence these /2

.' { 2 two appeals, which were unresisted before rne by the learned state attorney for the llepublic, Mr. Boniface,.in the absence of the appellants, who hed expressed ;,,1ishes not to e;iter appearances. The material facts established in evidence relating to the case against the appellants ·were· these. During the night of 20.12.95 Batiseba Njelekwa PW1 was asleep in her house with some grand-children and other relatives. The houE?e jh,ad two rooii1S nd one sitting 106m. She .slept in one room alone. Si tungile Seti Pt/2 and 'l'upokigwe ?1wakapogi PW6 slept in the second roo;n. And Magreth hwalfapusi HJ3, Agnes i'iwakapusi P:/Lt and ljatricia Mpangala PiJ5 slept at the sitting room. Suddenly about ten bandits armed with Pangas and clubs stormed into · the house by smashing the door. 'fhey held torches. '11iey broke the door to PW1 • s room who had put off th~ hurricane lamp light on hearing them enter the house. 'I'hey demanded money. 'l'lien they 1poved to the sittng rodil,l 1 vihere P,J3, . PW4 and PW5 were I making the same ~ . ) ~ . ·oemands and picking. some clpthes and other items here and there using torches zis they had•put. off .. the light from a hurricane lamp which was there. They finally moved tcuthe room tP.. '1hictJ.. P\12 and' PW6 slept and one of, them raped P~2o PWJ, P\J2, Plt/3 and ?W6 said they could not identify the appellants among· the bandits, but P'il+ and PW5_ said ·they identified the appcllarcs, '?:'le bandits made a.way with cash shs.30 ,DOOJ=• On 21 o 12. 95 D/Sgt Nuhu Pv ✓ 10 of Kiwira. Police station recorded a cautioned statement of the appellants (Ext P8) in which they a.dn1itted involvement in the I crime. He also recorded a cautioned statement ·of the J:_o.E.E...t12_a_ccus in which he admitted involvement in the crime.and implica.ted both appella:r:i-ts. On 23o3o96 the p:μblic: prosecutor tendered in cou:r;t an Identific"ation·-Pro-ade Register'{;J,tt.,P13), not as a w,it~~~s, but frqrn his.- table. Ext P13 had been arrcnged · ancl. .conducted 'qy · assistrmt Insp,ector. Kantimbo, who did not testify as he was·Gllegedly sick, and the public prosecutor had purportedly acted . . ' under· sectin 34B of th<h:E.'vidence A~~ 1_67. At the parade P\14 piked out -- .. ·~. ...... . .... -· . ' ....... . • /3 . .. ... -- :,.

.-'5 + ; 3 - the first appellant at the first round and the second appellant at the second round. P,J5 however picked out the first appellant at the first round, but failed to pick out the second appellant sayig, on being cros,s;..exarnined by· the second appellant, that he was not certai!:1 that the Gecond appellant was the same person he had seen during the incidento 'l'he six witnesses (PW1 -tr- Hv6). .• j .::• : ; had told P\V10 when first asked about .. the incident that the first appe_lant Was··, . . • -;i.· not among the bandits •• h1 their· swor1i. defence at the trial, both appellants denied a.riy complicity in the crime and claimed that their statements were a result of t;hreats and torture. .,.,,.J.: .. \lith respect', I agree _w:i,t\1. the .cl$.arnd. state attorney that the cbnvtction . •..•... ·- . • ...• i : . ....-· "":f. . ' -- '•,l-. ·.,. ', •• . . of tJ.rre ;appef-1'.ants W- 2:ga.i:E.5:,Jj1~;-,We;igp:tl qf . ~ . -r ·t';,: the evidence on record. . -: /".' was fraught· v1ihJdfaaati~¢:i.on-in SC} oany <itmportant aspects tha.t a conviction '\ could not proY be entered . . - ;::. .::i:.E!>,tc, the appellants were not properly identified • . In fact, they were not identified a.t a11·. t'his was what all the six witnesses

(PW1 to PW6) told th~ investigating officer PW10. 'l'his would account for the failure by F-:.f5 to pi!k out the second ·appellant from the parad.e. It would also account for the fact that PH4 had to go n.d -t-w.ica. he;fore lie· could pick out the second a:,Ypellant. It WOJJ.ld' also account for the fa.ilur-e by the four witnesses (HJ1, PW2, PW3 and PW6J.1' who uere faced \vith same co1.ditfons as PW4 and HJ5, to have identified the appellants. foe sonditions favouring a. proper and unrnistaken· identification were v_ery diffict,lt., It was during the night and the sitting roo:iJ aswell as the other rooms were dark after the light from tho huricaie lamps was put offo The torches held by the bandits were directed at the victims,, The manner in which the bandits had stormed into the house and into the rcoms coupled with the ensuing threats and assault on the victims ca 1 .1sed havoc and confusion, thus making it very difficult, if l1ot impossible, for PVJ4 and Pd5 to have properly seen and identified the ,qpqeJ.lants from a group of obout ten bandits. I am satisfied and find that the appell&-nts were not identified to lwve bec'-1 arnong the banditso OOOOl!OOOCOCOO

;.. .S.,eco1i,cl, the identification parade register (Ext P131 1•1as not, a!!d it could not have been~ part of the evidence on reco:r'd~ It was not evidence at all,. '.i1he public prosecutor was neither sworn nor affirmed. He was not a witness testifying from the witness box. In law, all ;facts are proved by oral. evidence which must be direct; and contents of docurnents are proved by primary or secc;mdary evidence. ' . • J 'lhis was not the case here. In the circumstances of this case~ the failure to call the police officer who had arranged and conducted the parade to testify was a .. fundainental irregularity which would have rendered the contents of Ext P13 hear-- say. Had the publie prosecutpr testified, a failure of justice might well have been occasioned on account of that there would have lacked i'n this case that apperance ef fairness and impartiality which $hould charactrise .the adinin:ietratio.o. ' of the criminal law. lGven then,· .}..xt ··p,r.3 ·,v,<?Lild have beJri rly and. .wrol'.l.gl;r . . ~ , . t .:_!f' ·:. ,, adnii:1:.:l-4~~.e_nce for the prqcedi.ire set ou under ection 34B of the ]μvidence 'i . • •• .,, Act 196? wa net corhplied 11>Lith"" .w.d lastly t helving been satisfied tha.t the appellants i not idJtntifiB<l during the incident, the holding of the parade • was a ridicule for Pl-!4 and PW5 could not have μ:Lek.et ut, the .appelL3nts whom I . they had not seen an:d· identi-fted a't:;,.the scene of crir:1e. J'.tJ.LS!, PW5 was recorded as being 14 years ol,. a1-i.9- therefore a child of tender years within the meaning of that term given under G2ction 127(5) of the Evidence .:-ct '1967. But he was sworr.. and t,ave evidence be.c·ort: a voire dire examination was conducted This W:3.s an error at law .. :Section 127(2) of the Evidence Act requires the.holding of a voire dire exa:ninatiun beiore swearing in a child of tender years · 0r11ission to -:;onduct a voire dfre before swer}-1'.l{; in a, child of tender years l1as the effect of bringing that e11idence to the level ,>.:, ~ . . of unsworn evidence of a child and, therefore, requires corroboration :by soine other evidence which is legally admissible - SE:E Franciss:oyatgvu,.R,',1961) E.P •• 260 and .?akil_a_y._R•, ('1967) E.A. L103., Buch corroboration, as :1:"'st1¥l continue to demonstrate, lckecl in t.bi.s casc>r, -~_h.:g.9; 1 there were the cautioned statements ._if i:hi:; app0J.lruLs re0urded by PW10,. I am satisfied that they we:i.·3 improper::;.y adniL:er:' in e'ride:r.ce., '..i 1 hey were .. I

• 5 o .. , ack1itted in evidence without any preliminaries. '.L'he appella11ts were u-'.lrepresented by learned counsel, and no enquiries were made by the trial magistrate as to their voluntariliness and about the circumstances leading up to their being taken. 'rhe statements amounted to confessions, and the trial magish·ate adrni tted them without first inquiring into the circumstan_ces under which they were made, and without first giving the appellants an opportunity to challenge their admissibility. '·iVJhere the admissibility of a confession comes about in the magistrates I courts 1 in which a trial within a trial is not strictly applicable 1 the magittrate should take up tJ:ie matter, and inquire into the circumstances leading up to the taking of the statement in much detail, and ask the accused whether he plans to challenge Uie admissibility of the statement',. If the accused does not challenge its admissibility, then the magistrate determines the question of admissibility on the evidence as presented.;, The confessions were repudiated at the trial, and in all the circumstances of this case; I find myself unable to say that,,ha.d the learned uagistrate followed the correct procedure he must inevitably have come to the conclusion that the statements were voluntaryo There is more to thiso A repudiated confe.ssion, though as a matter of law may support a conviction, generally requires as a matter of prudence corroboration, as is normally the case where a confession is retraoted - .ST"Ji: jUi Sal.l!.!=>.\lta_l{,._ll§.P.9.~i_c (128Ql ~J-i.fL.1 iCourt .ef Appe.al). In other words, a trial court should accept any confession which has been retracted or repudiated with c-aution, and must bef6re founding a convictidn on such a cession b'.3 fuily satisfied after cnsidering all the material points and all the circumstances of the ease that the confession cannot but be true. In all tb.e ciJ.c;unse ot: t.l- ~ I am satisfied that the confessions of . . .. - ~ . the appellante, 'properly ·coasidered, :fell ·t meeting that test, and that wanting in tl.1. was r,00.. A11,J . .:f...-01,c:ll_y. th~ s -the ~ ~ the f 9.t_h a WAh imD1'f ;;,±...cl. the appellarrt:f', T vouJ.fl civu11i t,.W.,. ~f 86-Si.Q.Zl an ~ ~ ~ ~~,ady •••1•••v•e•• /6 ... . ,

6 explainedo And besides, such a confession in la-J could not have sufficed as ba.sis for the conviction of the ap}Jellantso It could. only have lent 13upport to other acceptable evidence, which in this case was not tllere SEE Section 33(1) and (2) of the Evidence Act 19670 For all the foreeoing reasonsi I allow the appeals, quash the convictions of the appellants, set aside their sentence, and hereby order the immediate release of both appellants 7 Andendekisye Mwar,1pyate and Andalwisye Anyelwisye, 3 October 1'097 .. For Appellar:.ts: ,ii t -r. held., Abse11.t; · linrepresented., P.B.F. MOSHI JUDGE l<'or Republic~ ·•i,'.t-. I)._r,:dace, learnul state attorn,ey .. I CERl'IYY THAT 'rHLS :r.s .A TRUE COPY OF THE GRIGINAL. c·\ J-\ /.,,,,.,,------ . -- .... _cj.+ L ...... . ~ . ;.~ P..L 8 XG.l.CZJ---RIs2-: • • . .. ..... 1 · \

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• 3 - and all the circumstances of the case that the confession cannot but be true. In all the circumstances of this case, I am satisfied that the confessions of the appellants, properly considered., fell short of mee_ting that test,- and that corroboration in material particular by other evidence, \Jhich was wanting in this case, was required., The;e were, besides, the defences of alibi raised by the appellants •. In all the circumstances of this case, it does not occur to me that the trial court accorded those defences the attention tbey_deserved. In the same case (supra) the Court of Appeal held: As a matter of law, an accused person is not required to prove his alibi; it is sufficient for him if the alibi raises a.reasonable doubt. In this case 1 the appellants did. not only raise those defences of alibi but brought evidence in their supporto Iri my view, those defences, properly considered, were quite plausible and capable of raising reasonable doubts -as to the complicity of the appellants in the crimes. It was the foregoing reasons that I allowed the appeal, quashed the convictions, set aside the sentences, and ordered the immediate releaae of the appellants from prison~ AT F,BEYA. 22 November 19990 E.P. l½OSRI JUOOE. I C@TIFY THAT, THL3 IS A TRUE C:OFY OF THE ORIGINAL. -·: /------ ' . ' _ _cL-ff- .. DISTRICT RBJISTRAR