Stomeni Patrick Kyando vs Republic (DC Criminal Appeal No. 122 of 1997) [1998] TZHC 2295 (24 July 1998)

IN THE HIGH COURT OF TANZANIA / AT MBEfA (DC) CRThINAL APPEAL NOi 122 OF 1997 (Original from Mbeya District Court at Mbeya in Criminal Case No. 336 of 1996 Before: P.A. Lyimo - Resident Magistrate) S1OMENI PATRICK KYANDO • APPELLANT Versus THERPUBLIC..............PESPONDENT JUD1ENT The appellant, Stomen Patrick Kyando, and Said l3araka Mahoma, who is yet to appeal, were jointly indicted before the district court of Mbeya for Armed Robbery, contrary to sections 285 and 286 of the Penal Code. They were second and first accuseds respectivèly. They were convicted as charged and each sentenced to the statutory minimum imprisonment term proscribed for the offence of thirty. years. The conviction and sentence aggrieved him, hence this appeal which was resisted before me by the learned state attorney for the Republic, Mr. Mulokozi, in the presence of the appellant, ..ho abidd by the 'contents of his memorandun"of appeal. Akber Kassarniali PW3 is the owner of the Holiday Lodge aid Restaurant at Sokoine area within the Municipality Of Mbeya. During the night of 25.1095 at about 3.30 AM the premises- ere invaded by thugs who broke into the office after firing two gun shots in the air and made awayi •th'his one Video Deck make Sonny (1,ct P1) and cash shs.100,0001=. The appellant was not identified at the scene of crime. Abut sven' months later,' on 15,5.96, the investigator A/Sgt Enmanuel PW2 of Mbeya Central Police Station arrested the 4 appellant at Tunduma in Mbtzi district, It was neither allegeZl norestablished that the appellant was in hiding. The appellant was brought to the police. station where, on being questioned by PW2, he allegedly admitted complicity in the crime,. PW2 recorded his cautioned statement (Ext P3) which contained that admission, t.o.eo.../ 2

Before the cautioned statement (Ext P3) was tendered in evidence the appellant told the trial court 71 1 wrote the statement and signed itu. In his defence the appellant said "1 signed the bautioned statement." However, he alleged in his defence that he was beaten by the police at the Central Police Station. The only evidence against the appellant was his cautioned statement (Ext P3) which was aconfession, The law on confessions is well established. Where a confession is the only evidence against an accused person, and the prosecution seeks to rely on it, the burden is entirely on the prosecution to prove affirmatively that the confession was voluntary and it had not been obtained by improper or unlawful theans— SEE section 27(2) of the Evidence Act 1967; Ezekis/oSmka].iV.R. (E4A.C.A,.). reported in ( 1 972) H,C.D. 2+O; and PashidV.R (1969)E.A, 138 Theapoellant was unrepresented at the trial by learned Counsel. This dourt held in Masasilas/oMtobav.R. (1982) ThR 131: Whee the admissibility of a confession comes about in mag istrat es the courts, in which 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 whetherhe plans to challenge its admissibility,' In.this case, it does not come out clearly from what the appellant said before the statement was tendered in evidence that the magistrate had fully requiremeñt. compliedwith the foregoing - What the appellant said was that he made the statement and signed it. But this was different from saying that he had made and signed the statement voluntarily. PW2 himself did not describe the circumstances under which he had recorded the statement. The appellant alleged ill-treatment and torture in his defence, and his confession, therefore, :must be taken as repudiated. In all the circumstances of the case, and with respect to'Nr. Mulokozi, .1 find myself unable to say that, had the learned magistrate inquired into the circumstances leading up to the taking of the statement in much detail, and had he given the appellant an opportunity to challenge its admissibility, he must inevitably have come to the conclusion

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-3- t the statement was voluntary0 Something else too0 A repudiated confession, though as a matter of law may support a conv1tion, generally requires as a matter of prudence corrobora- tion-- SEE All Salehe Msutu V. Ppublic (1980) TLR 10 In other words 1 a trial court should accept any confession which has been retracted or repudiated with caution, and must before founding a conviction on such a confession be fully satisfied after considering all the material points and all the circumstances of the case that the confession cannot but he true. In all the circumstances of this case 1 I am satisfied that the confession of the appellant, properly considered, fell short of meeting that test, and that corroboration in material particular by other accepted evidence, which was wanting in. this case, was required0 For all the foregoing reasons, I allow the appeal, quash the conviction of the arpellant, set aside his sentence, and hereby order the immediate release of the appellant, Stomen Patrick Kyando, from prison.

/ -. I . B.PONOSHI JUDGEO AT MBEYA. 24 July 19980

• For Appellant: Present.
• For Republic: Mr. Mulokozi, S.A.