Republic vs Accd. Marco Raphael (Criminal Sessions Case No 13 of 1984) [1988] TZHC 347 (19 August 1988)

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• IN THE HIGH JOURT OF TANZANIA YA • ORIGINAL JURISDICTION t (1ffbeya Registry) I ' PTJIAL SESSiONS CASE iOl3 OF 194 T14E REPUBLIC versus • Accd,_iIARCOAPHAEL CHARGES: INCEST 'BY MAIS c/ l5 of' the Penal • Code, • JULGIVIENT - Ja ThB a'cused PJRO PAPHAEL facing 3 haie of incest by • males contrary to section 1 .58 of the Penal Code s He is alleged. • ft have had carnal 1aowled.ge of his d.am atr Prisca on id December. about. 11 years agov He denied the here-, it is not disputed that Prisca (U• is :,hc daughter of the ' eued. 'It is also no disputed •Lhat on 2nd Docomher , 1977 Psa accompanied the ccusod from thei: home village i Mtakuja o Mkwajuni in Chunya Distrio horc io aoc;uacd sold fSh t After
• 40 ).lg fish the acused drunk pombe at pombe shoj in the presence o. his daughter and 'ltor in the evening they walked hack home toge'thr.' Tberefo're the accused was with 2rica the whole day until, they aiived home togethor,, • Howevor, Priscahas claimed that on their viay hcma the accused asked her four times to have sex with hi bi that he rofusod, ay.,as When they we'e only a short Th : ;arI f±om/h.omo,, and it had began to • get dark the accuod f'e1ld. hc:c do\n arid forcibly had sex with her

/ .-ecou.1d not cry otrt. hauc Ith cu'd i,breete1ed. - kill he After he had aatie±.Lec. es . he went aSJ..dO te make w3ter 1 It vs then, Prieca run home he reparto3 to her mother what had done to her Flpr mojhe reported in tra ac a ten oell leadej ..12sed- who had gone sJ..eep vme owci:orwd ard pc:;ri OI about Pria allegation He de - iiod. it:;, Frisca we's however oxamLred by two wome who ascertained that he had :ndced hea. cum3l1y 1mov SubsequontJ.y the eseJ es tako:ri to a Justice f the PeaQe Seleman Ngesa 3 1j a'y 1 ut N ia srate It f • not quite clear from the e\r.dret I1 IL. was a olico oficer who tic, aoused to the Justice ul the C E3 that as it may The .............. a?used madu a vo1ui 4 siat. uli Lu hnu oxcopt Lr r'cr'ain rio . n the StetCLCI t 1' dJ iJ'/aaa 1 3ui U .PL teteiin was however aittd into 3 C L i 1 L Li the rr' SJ C J' OL1Lod LS recorded, as having b3ald the foi.lowing wor; . Tu2 OOlLi3 ha 1bt nj fl\ -jrt ''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''' hanL I 7 0lL1. .1 F 414 \Tc2 1, i.e C h3 Those arc thu vqorJs vv i.. h ci re In his ofcbcc t'j - 1C., i h i ha imowlodge of his cia gbt:or P'a.s •rrted was no X3fly 1a o by an] fl 3 31 c 2/ /77 Tn his although indeod, P:isc roport ,t hen 1thcr tha he had sex whh, heL p and su the coruipieflL 5 tdIfl to i that was a false uflcctio.Ci \N1llc'l1 15 .namiroct bT Piasc3 not,lior 'iho at some time 'i 'ac1 denied hir Ii 1rae.i rights cror hor s His wife :cc. was iook..Ln.g tom OXCLSOS to loavc kimr Accused ard. that Prisca's accusations more a 1i o because 1ho was no reason w' ho would have sex with her co dccc to his home WIlL.. he had amplo 1 .ire to have sex

41 with her much further away.from homo He had drank pombe on that day but he was not ao drunk as t6 sex wlth his own daughter. seems to rio that althouih the prsor O11L.d on the eth'a- judicial statement of the accused as D a ifcsaion whish •oboratod Prisca story, it was not. in fact a coifossion. In thasaternent the s6 t , cused is alsO'oco±dod, as saying. Lakini ni 11 wa le z a wa c a kwar Wa tanu toondo] a rairni fla binti yan asubuiii aa tatu na r.apakq turudi wote nyu.Libanl hatu.jaachana na bin i ii.cu 0 Kwa hiyo ni ikubali huenda 1 riir'a niliyonzin hivyo binti yanu. sab • ya kulewa" (My tthderIñing fOr öiip11asiB). . Shop . w9rds are oquivocal and give the clear mossase that he is ioii ho had sex with his daughter and that if it is prood he-had • with her at niht perhaps have boon the rosult of drunJmoss lit was held in the case of Rv FTG/oIJStmtIA AND 89 that a confession is on unequivocal adinjsion of having comr-iittod an act which in law io"t a crime'. Q in the casc.of R V. MALIKZJ ilo LUOTA, £1941/ 8 E.A.C,A. 25 said:— •L. "No statomont that contains exculpatory OV nattor can amount to a convesion if the exculpatory statoiiont s of $rno fact which if true would nogative the o'fonco alleged to be confessed. Moreover, aconosoion must either adnit in t"s the o±fonce or at an rate subt-' lly all the facts which contjt'to the offence, An admission of a gravely incriun"tin f'1 J itao1f a confossien" Thee two asos were cited with approval by this court rnible, J. n the ca of AnarowKileo v. R /977 HCD 239

4 . -. Sirxc the" extra—judidi.l statemOnt - Exhibit P1 in this case not a confessidn theroforo, we have only the word of PriBca on oath agains/tho word of tio accused on oath The actice of t courts in this co'mtry is that in sexual ofences t is unsafe to rely on the word of the coiipainant as the ,o,e evic.once 'for conv;cting an accused person. The prosecuting .; tae Atorncy unwisoJ.y did not call as a witness either of the two women who examined Pr±sca ànd aliegedly found that she had just ena1ly known. That wov.ld have provided effective corroboration q Prisoa's accusation t, hà t her f'ther had hacitsox with her. The rule of practice requir.inrg corroboratioii in sexual offence ; only one of prudencc., not a statutory roquirouänt. Thus, in sevoral eQ including H v. J.'JRI, M'VAIPOLT968hD, n 300 and in R v. M0H'5687 ICD 369, Georges, then was, : that If wa'ns itelf of 4 tho danger df cnvi ,ing in the absOiibe of but never- ho3ese 'inds the ovid.onco of the coiiplaint so convliacirig that it is s p We to convict, it "iay do so Nhe. suining up-to the asOso.I.warnod ther Of the dañgO rs . o v without corrobratiot iut \that , rnicting nee .. . . ..• Z. •ônvincin tha they have no doiit at all she was telling the 1puth l they could ,ind-.that indeed the accusodr:1.11molodge 02 h$ daughter Prisa. And if they wore satisfied that he was not so dnk as not to kncw what he w a s doiiig or of kwji-ig.that he was . . . w-th bavtg sex with his own daughtc-i and notus wife, they, could avise , that he be c.onviqod a s charged . . . H. . Both assosso were of the View6iat Prisca.s vionce was competely reliabid and that she w.s tolling nothing but the truth, They also advised that although tho ! cuced had tuik pombo he knowingly dociod to hve sex with his:.aughtor and, therefore,.,. tha.b

be conv:ted as nargod Ater serioua consideration: of all the evidence, onrecord. I have, with respoci to a,roe w;ith tn'.,'% ddvec o f the ac , j and gentlon, an asessors, P'isca had willingly gone wiTh his father to Mkwajuni. and the trLf 1 sh hd boon sold the accused bcudht her clothes, obviously to her great ratitncLe and fThecu('e, If 11OL1 on ctting near home Pe n.shed home cryir.g that her father hadhad sex with her, it must ç true that that in fact hpoio. She could not have suddenly oroctod that accusation against her father ater. h' had been •000d to .hor' The explanation givOn by the accused that she had o suddenly fabiicotod tue acusction noroly to help her mother to have him does not hold wato liio-ood oven aftor that day, the has . ..... a.eused,in his ovrnf words/had t io ahilThron wth his wfo suesting that he and hi wife cont.inuod t:' 'live together and have a normal sex life. I also agree with the .aossoro that the accused was not ao intoxicated as not to know what ho had Jono. lor one thing ho had persisted on asking Prisca for sex all, along the way home and sho tried to resist his advances untill, in the oncl, 3110 was brown down y'ifrprise and the accused did his lustful act an hcr conduct b'the accused is not consistent with the condition of a person ir, no drunk as not to know the nature of his act hat he was ravaging his own daughtor In any case, in his own evidence here in •ourt he had denied that he was drunk,. I routht thereforoind the aeused guilty of the offence of incest by ri1oT trary t aection of the Pbnal Code: anl I CO JA Mroso JUDCTE

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• 6 No roco of pp3 T . Cr5nd hed boon n r ltoe3r for OITI S YOts1 The pubL r hich bias i vc to the ffcno is a purn shç r01f 0 s a first offondor I ek that ho _CflionT I c I' TTm Tr - Tdoffeno@ whj1 the acouso 6has bo °°Ctod racts a soronco of fio 0Oi Bt 1 ody for oars I hao to toko h a 0 ioratir C0flSid0IflgS OftoflC5S o f1is fl3tbrn ShOL1JJ L J. ut0 hi Vi9 s0fltcc ri o LjcJ0 rlontns Lpr1srlo Ri1 ox. appoaj aa1nst an °P1ic1 I r At M'bey3 LJDLL 19/8/88 "5 "AsorE thani0i arid . 5 Jkrvv'ATM .iirn