Albert Sykilili & Another vs Republic (Criminal Appeal No. 56 of 1998) [1999] TZHC 340 (23 July 1999)

l rv;osHI J. ,.· .. ~ .• .,J- .. -.-- H C .- IN TEF.: EI}b COURT OF TANZ,1\NL'. J.T MBEYA CEil'lINAL J.1.PPl/AL NOo 56 OF 1998 C1' 0 NO. 59 OF 1993 (Original Criminal Case No. 64 of 1997 of the District Court of Mbozi at Vwawa Before: L.S. Mtambo(f",rs) • District Magistrate) 1 • ALBERT SYKILILI) 2. ERNEST srnKOKO ) 000 ••••••••• APPELLANTS Verslls THE REPUBLIC oo::»i:io~-ooooooooooono 'RESFONDENT JUDGMEN'l' The hearing of these tv.10 a.ppeals was consolidated. Tbe district court of Hbozi sentenced the first and secoci appellants, ilbert .Sykilili and. Ernest Siinkoko, to thirty years imprisonment plus twelve strokes of the cane consequent : upon a conviction for Armed Robbery, contrary to sections 285 and 286 of the Penal Code. '.l.'he conviction and. sentence' e.ggrieved. them, hence these a:f.ipeals. 'rhe learned. State Attorney for the Republic who entered an app·ea.rance before me, Mr. Boniface, declined to support the conviction of the first appellant, Albert 3ykilili, but supported the conviction of the second. appellax1t, . Brnest Sirnkoko, in the pre,'3ence of b9th appella.nts ,,ho told the court they ' • abided by the contents of tbeir t'1eir!orandums of Appeal. Bryson Lungu.ja (PW1) and hi.s \vife Anastazia. Mote la (PW2) were aseer: in their house during the night of 21.5097. The night a.s well as the house. W€:re d.u.rk At atout 1 oOO brs PvJ2 11,ent outside the bouse for a call of naturee 'l'hat is what PW1 said. But PvJ2 said she \vent to check on their /,'• . go1c,ts she suspected had escaped from the pen. Outside tb(;· house PW~ came face to face ,vith a eroup of not less than ei_ght thugs fil".tned with a gun, to~•~ cbes, and Fangas. 'l 1 bey wore hats which partly covered. their faces and tey .. assaulted her (PFo3 = Ext P 2 )o PW2 called. upon· PW1 ,saying she was dyingo' Two tllugs entered the house and came face to face with PW1 · .. at the qi tting~ o;ioeeo•c•o• /2

2 room VJho was goini:; outside in aid of P\v2. l combat between Pi>J1 and tbe two thugs ensued. Tbose outside wel'·e firing in the air and at the bouse., In the struggle in the house one of the two thugs PW1 allegedly saw nd recognized ,,· a.s the second appellant by tlle aid of a beam of light from a torch held by the other thug \•Jhich fell on bis face cut PW1 on his left hcU1,cl. (Fli'.3 ~ Ji;xt 0 1'1) and P\rJ1 cut 1 . llill on the rig.ht band and on the .lower 1ip. The other thug PiJ1 could not identify cut FW1 .. 011 the head (Pii\3 ,.;-, Ext. P1). "FW1 claimed to have known the second appellant before tbe incident by seeing him.at a tourist bar. Tbe tlrngs ma.de away ,,it.11 cash sh:s·.z,500/=, and a radio make National Serial fo. Bo4670., ih1akened by the gun shots a neighbour of HJ1, Raphael Fakona (H;3) beat a drum and several :people gathered at the house of PW1o A report .of the incident was registered at Vwawa Police Station in the ... morning. P~1 . told the police that be had wounded one of the thugs., D/Copl f-'iob.arned. (P:J4) we1t to the house of P:J1 and picked from the compound 14 pieces of used cat:riCl;ges (Ext. P-). On 23.5.97 the second a}Jpellant was arrested and found to have injuries on his right hand and lower lipo Le told the police that he had a bicycle accident on 17 .5. 97 on his way to 'l'undumao That same day (23.5097,) D/Sgt Dismass (HJ?) recorded a cautioned sttemnt (Ext.P5) from the second appellant in vJbich the second ap1:iellant allegedly confessed involvement in the crime. 011 2605097 ASP 'I~senjele (H·J6) held an identification parade at Vwawa police station which comprised of' eight persons including the second appellant out of which HJ1 ricked out the ·,second appellec11to Tbe . ·. identification parade register PF 186 (£:do P3), however, contain.s a list of nine participants. Both e,ppellants denied involvement in the crime in their ;::;worn defence at the trialo The first appellant was arrested at his house during the night of 28.5.970 Eis wife, Yusta iViwampashe (rn,J3), su:pported him and said he did not leave the house during the nigbt of the incident. 'l'he second appellant., likewise, said he did not leave his house during the night of tbe incident. His i,;ife, Jane Gidioni (D1:J1), supported him. Ee said he was involved in a •000000000000000 /3

,.. 3 bicycle accident on bis way to 'I'unduma on 17.5.97 and sust8.ined injuries on .• I.} •. ';· right h<?llld and lower lip, among otber places o Iiis wife (DVJ1) and Loid. . ·,. . . Simkoko (mi2) supported himo He ,<;;aid. he was forced. to sign tbe cautioned. sta_tement (Ext P,5) under torture and tbreats on bis lifeo :t:.e said PW1 was shown. to hi(n before he was told. to pick him from the identification parade .. Let me, fi:rst+y, dispose qf the appeal by the first appellant. I agree .··; . with the lea.:med .State A:ttorney that tbe conviction cf the first appellant was based on insufficient evidence. Ee was not sufficiently identified ,.ith the crimeo i?W1 did not identify him at the scene of crime. The only evidence , .. ! against bim was that of Pl.r.'2 who said in· ·cross,,-examination that she· identified him. Eμt PW2 did not say how sbe ident:i'.fi-d bimo She did not elaborateo Sh_e was unknow11 to him. She did not give any description of the first appel_lantwhich could have given weight to her assertion. Tbe conditions favouring proper and unmistaken identification were, as described., very difficult. In law the identification evidence of PW2 was expected to have been absolutely water-tight in 01·der to support the conviction-· SEE. 1.o.;. This could not be said of the identification evidence of Plv2, and the appeal by the first appellant mus_t, in consequence, be allo'led.. I now turn to the appeal by tbe second appellant .. : I would, with respect, disagree with Mro Boniface that his convicti6n was ba.sed on sufficient legally admissible evidence. l 1 'irst, there was the purported identifica.tion by PW1 at the scene of crime.· :But tbe conditions for a .· . proper a.nd. urnnistaken identification v..:ere prohibitiveo The house was dark as \vas the night. 'rbe gleam from the torch was briefo The encounter its elf was brief and there was havoc and confusion. Pi;J1 and toe second. appellant were not well k.1101:m to eacb other. It was not suggested, let alone established, that trier had ever talked or been together before the' incidento All that PW1 said was t 1 Jat he had seen him at a tourist bar. Ee did. not even know him by_ nameo It was therefore in tbe circumstanc·es •oooc.oooaoooeo /4

4 very difficult, if not impossible, for P\iJ1 to have properly seen and identified the second appellant. This would account for the fact that P\rJ1 did not give any description of the second appellant which could have given weight to bis assertion that he identified himo I hold therefore that the second appellant was not properly identified at the scene of crime, and having thus held, the purported identification at tbe identification parade would not have been of any evidential value, and neither would have been the _injuries found on tbe second appellant for wbicb the second appellant, in any event, had given a plausible explanation. Second, there was the cautioned stA.tement (Ext. P5) of the second apI)ellanto It does not, ho,.;ever, oc;cur to me that the statement was properly admitted in evid.enceo It was admitted in evidence without any preliminaries. The second appellant was unrepresented. by learned counsel, and no enquiries were made by tte trial magistrate as. to its voluntariliness and the circu•- rnstances leading up to its being taken before it was admitted in evidence. Th~ second appellant was not given an opportunity to challenge its admissi,~ bility before it wa~ admitted. The statement amounted to a confession, and this court held in tIE:.s.s.i_l;'3-,.s/o.J1;.t~?AY..Jt (1982) ToL.,R. 131: 2'•i-,here the admissibility of a confession comes about in the magistrates' courts, in w:bich a trial within a trial is not strictly applicable, the magistrate should take up the matter, and inquire into the circumstances leading up to the taking of the statement in much detail, and ask the accused whetber he plans to challenge the admissibility of the .statemento If the accused does not challenge its admissibility, then the magistrate determines the question of admissibility on the evidence as presented •. : In this case, the second appellant challenged the admissibility of the confession in his cross--examination of the recording officer (PW?) which was after its admissibility, and in all the circumstances of this case, I find myself unable to say that the learned magistrate must inevitably· have come to the conclusion that the statement was voluntary had he followed the correct procedure. If I am 1Arrong, and tbe confession was admissible, the 00000000& /5

5 confession wa.s I bO\·Jever, repud.iatr-.:d at the triaL Ji repudiate confession~ though as a matter of la\·1 may support a conviction, generally requires as a matter of prudence corroboratioL as is normally the case where a confession is retractedQ This was .held by the Court of Appeal in Ali, Salehe Msutu v .] (1980} T.L.R. 1c In other words,· a trial court should. accept any confession which has been retracted or repudiated. with caution, and. must before founding a conviction on such a confe.ssion be fully satisfied after considGring all tbe material points and all the circumstances of the case that the confession can.not but be true. In all the circumstm1ces of this case; I am satisfied. that the cor.ifession of the second appellant, properly considered, fell short of meeting that test, and that corroboration in material particular, wbich was wanting in this case, was requiredo 'J:b.e SE;cond. a:ppellant, it woulci be recalled. 1 raised tbe defence of alibi and brought evidence in its support o As a matter of lm,,, an accused person is not required to prove his alibi; it is sufficic:mt to bim if the alibi raises a reasonable dou"bt•-·· Sl~ MSUTU 1 S CASl~ (Supra) o In all the circumstances of tl1is caEe, I am satisfied that the defence of alibi raised by th8 second. appellant, properly considered, raised a reasonable doubt as to his complicity i:n the crime charged. Bis appeal must, likewise, be allO-ied.. For the foregoing reasons, I allm~ the appeals, q_uash the conviction of the appellants, set a.side their sentence, ancl bereby order the immediate release from prison of both appellants 1 Albert Sykilili and. Ernest Sirnkoko, 23 LTuly 19990 li'or Appellants; Botb presento For Itep1.1blicg hr. Nangela, S.A. , .... ...., .... ",. vvr.l- B.1-'o ViOSHI . r· C::C 'I'F'~ OBIGiiHLo . 1 __ , : ,.; -- ... , ... DLsTrud•it 1m; ISTRAR. . . ~ . .. ·• .•. '• . ~ - . . ....... ,., ... _ .... , .,,._. ,