IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A. KAJI J.A. And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 228 OF 2005
AMIRI
RAMADHANI ……….………………….…….. APPELLANT
VERSUS
THE
REPUBLIC ………………………….…………. RESPONDENT
(Appeal
from the Judgment of the High Court
of
Tanzania
(Sheikh,
J.)
dated
the 22nd day of September, 2005
in
HC Criminal Appeal No. 46
of 2003
-----------
JUDGMENT
OF THE COURT
10 & 30 October,
2007
MROSO, J.A.:
The
appellant was convicted on three counts by the District Court of Arusha. On the first count, which was of armed
robbery, he was sentenced to a term of thirty years imprisonment. The second count was of attempted suicide for
which he was sentenced to seven years imprisonment. A sentence of two years imprisonment was
given for causing grievous harm, which was the third count. He appealed to the High Court against both
conviction and the sentences which were imposed on him. The convictions were upheld but the sentence
for the offence of suicide was found to be illegal. It was reduced to one of two years
imprisonment, which was the legal sentence.
The
appellant still felt aggrieved and has appealed to this Court, filing five
grounds of appeal which were drawn up by Mr. John Lundu, learned advocate, who
also appeared for him at the hearing of the appeal. The respondent Republic was represented by
Mr. Mzikila, learned State Attorney.
The five
grounds of appeal are briefly as follows – First,
that in recording a caution statement from the appellant, section 57 of the
Criminal Procedure Act, 1985 henceforth the Act, was not complied with. Second,
that the caution statement did not amount to a confession as the first
appellate court held. Third, that the first appellate court
erred when it held that the repudiation of the caution statement by the
appellant was an afterthought. Fourth, that the first appellate court
erred in holding that the evidence of PW3, PW4 and PW5 corroborated the
repudiated caution statement. Finally,
in the fifth ground the complaint is
that no reasons were given for disbelieving the defence evidence. Before we discuss those grounds of appeal we
will give a summary of the evidence that led to the appellant being convicted
for the three offences with which he was charged.
On 2nd
March, 1998 at 10:00 hours in the morning, one Mashaka Waziri (PW2) who was a
taxi driver, driving a peugeout car with registration number TZ 50528, was
hired by a person whose name was not mentioned.
He took that person to an area in Arusha Municipality Mount Meru
Hospital
Later, PW3 –
Joackim Minja saw a peugeout car coming from the Ngaramtoni direction. It diverted from the road to what appears to
be a mere path just as a police car was approaching from the Arusha direction
and heading to Ngaramtoni. Minja,
probably together with other people for he used the term “we”, followed the
peugeout car. It stopped somewhere and
four occupants got out and started to run on foot, two of them each holding a
pistol. He was able to identify one of
those who had a pistol to be the appellant.
The appellant was said to have fired his pistol in the air and before he
was arrested by the people pursuing him, he allegedly shot at himself. Two of the remaining three people who were
fleeing were killed, apparently by the pursuers.
Omari
Hussein (PW4) who participated in chasing after the four bandits said he was
shot in the leg by the appellant.
Another witness, Fredrick Ismail (PW5), claimed he saw the appellant
shoot “PW3” and then the appellant allegedly shot at “me”, presumably meaning
that the appellant also shot PW5.
The
appellant was hospitalized at Mount
Meru Hospital
In his
defence evidence the appellant said he was on his own errand when he saw four
people being chased by many people. He
joined the chase. Two of the people
being chased had pistols and one of them shot at him in the chest. He was subsequently hospitalized. He denied making any statement to the police.
Although
Mr. Lundu submitted five grounds of appeal he decided to argue the first ground
separately and then argued the remaining grounds together. On the other hand, Mr. Mzikila argued all the
grounds separately but did not follow any order. He simply argued a ground of appeal as he
found convenient.
In arguing
the first ground of appeal Mr. Lundu contended that section 57 (2) (a), (3) and
(4) of the Criminal Procedure Act, 1985 were not complied with. According to him, the police officer who
recorded the appellant’s statement did not use the question and answer format
but used the narrative form, contrary to the dictates of paragraph (a) of
subsection (2) of section 57 of the Act.
Furthermore, the recording officer did not write a certificate at the
end of the recorded statement and did not indicate if the statement was read
over to the appellant, certified as correct and signed by the appellant. The statement, therefore, should not have
been admitted as evidence at the trial.
Even so, responding to a question from the Court, Mr. Lundu agreed that
even if all those alleged defects relating to the statement were found to
exist, there was no indication that the appellant was thereby prejudiced.
Mr. Lundu
then argued grounds 2, 3, 4 and 5 together, the centre of his complaint being
the caution statement, Exhibit P2. He
said that although the trial court did not base its decision on the caution
statement, the first appellate court did.
Yet the appellant had repudiated that statement. Having repudiated it, the trial court should
have conducted a trial within a trial in order to decide on its admissibility,
even though the repudiation was done at the appeal stage. He cited two decisions of this Court in
support of that proposition. These are Shihobe Seni and Another v. The Republic [1992] TLR 330 and Hilku Mehi v. The Republic, CAT Criminal Appeal No. 77 of 2006
(unreported). He argued that it did not
matter that the appellant did not object to the admissibility of the statement
when it was being tendered as evidence.
He submitted that the High Court erred when it held that the repudiation
of the statement was an afterthought. He
asked the Court to allow all the grounds of appeal, from ground 2 to ground 5,
because even if it were assumed that the appellant made the statement, it did
not amount to a confession because it was exculpatory.
Mr. Mzikila
supported the judgments of the two courts below. Although he did not follow any particular
order in responding to the grounds of appeal, he nevertheless appeared to
respond to all the grounds of appeal.
For orderliness, we will refer to his arguments following the grounds of
appeal seriatim.
Regarding
the first ground he contended that since the appellant repudiated the caution
statement he could not turn round and say that the recording of it did not
conform to section 57 of the Act. Even
so, it was his submission that the caution statement was in fact recorded from
the appellant and that the repudiation was an afterthought as found by the High
Court. On the authority of Tuwamoi v. Uganda
In dealing
with the second ground of appeal the learned State Attorney said that the
caution statement (Exhibit P2) was squarely a confession under section 3 (1)
(a) of the Law of Evidence Act, 1967 where one of the definitions of the term “confession”
is given. On what appears to have been
second thoughts, the State Attorney said that the words of the appellant in the
caution statement together with his conduct were capable of a different
inference. They were not incompatible
with innocence.
Specifically
referring to the complaint in the third ground of appeal, Mr. Mzikila,
reiterated that the repudiation of the caution statement was an afterthought
because if it were true that the appellant did not make a statement to
Detective Staff Sergeant Pius (PW1), he would have refuted it immediately he
started to give his defence evidence. He
would not have waited until he was cross-examined on it by the prosecutor and
then repudiate it. The learned State
Attorney cited the decision of this Court in DPP v. Nuru Mohamed
Gulamrasul, [1988] TLR 82 to support that argument.
As regards
grounds 4 and 5 of the appeal the learned State Attorney agreed with Mr. Lundu
that PW3, PW4 and PW5 did not corroborate the repudiated caution
statement. Ground 5 was not addressed
specifically but it was submitted that the two convictions should be upheld and
the appeal was to be dismissed in its entirety.
In
discussing the grounds of appeal we think that we need to answer four
questions. First, we need to answer the question whether the appellant made a
caution statement to the police. Second, whether in recording the
statement the police officer – PW1 – complied with section 57 of the Criminal
Procedure Act, 1985. Third, whether the caution statement
amounted to a confession in law. Fourth, whether the confession was
corroborated. All this is because the
conviction was mainly founded on the caution statement.
The two
courts below found that the appellant made a caution statement. The trial court did not make an express
finding but such finding can be inferred when that court said of the statement
that PW1 “took accused’s caution statement … which accused did not dispute”. Similarly, the High Court did not make a
specific finding but judging from the discussion by the High Court of the
relevance of the statement as incriminating evidence, it is certain the court
was satisfied the appellant had made the statement – Exhibit P2.
We believe,
like the two courts below, that the appellant did in fact make the caution
statement. His repudiation of it when he
was being cross-examined by the prosecutor was indeed an afterthought. We also doubt the seriousness of Mr. Lundu in
supporting the repudiation of the statement by the appellant. To repudiate a statement is to deny ever to
have made it. In our view, to repudiate
a statement is different from retracting a statement. In the latter one is not denying that one made a statement but that what was said was
not true or that one was forced to say what is in the statement, or one is revoking or unsaying
what one previously said. In this appeal
what the appellant was probably trying to do was to retract the statement. Indeed if the appellant never made a caution
statement to the police and Mr. Lundu believed him, he would not have spent
time and energy to argue that section 57 of the Act was not complied with
during the recording of the statement.
This leads us to a discussion of the manner the caution statement was
recorded.
We will say
that section 57 of the Act was not meticulously followed. For example, the question and answer format
was not adopted. Instead the narrative
style was adopted. But it is not
mandatory for the question and answer style to be used. Section 57 (2) (a) of the Act speaks of “so
far as it is practicable to do so”, suggesting that where it is
impracticable one may dispense with that style.
It is not
indicated in the statement if the appellant was illiterate or that he knew how
to read and, in that connection, whether or not the appellant was given
opportunity to read the statement himself after it was recorded. It seems here the recording officer followed
subsection (4) of section 57 without laying the basis for resorting to it.
Subsection
(4) of section 57 reads –
“(4) Where the person who is interviewed by a
police officer is unable to read the record or the interview or refuses to
read, or appears to the police officer not to read the record when it is shown
to him in accordance with subsection (3) the police officer shall –
(a)
read the record to him, or
cause the record to be read to him;
(b)
ask him whether he would
like to correct or add anything to the record;
(c)
permit him to correct,
alter or add to the record, or make any corrections, alterations or additions
to the record that he requests the police officer to make;
(d)
ask him to sign the
certificate at the end of the record; and
(e)
certify under his hand, at
the end of the record, what he has done in pursuance of this subsection”.
There is no indication in the recorded statement that
the appellant was the kind of person envisaged in subsection (4) quoted
above. That is why we said earlier that
section 57 of the Act was not fully complied with.
We are
satisfied that despite the above mentioned shortcomings, section 57 of the Act
was substantially complied with. The
police officer introduced himself by name, mentioned his rank, warned the
appellant that if he made a statement it may be given as evidence, that the
appellant could have a relative or advocate present when making a statement,
whether the appellant was ready to make a statement, the appellant signed by a
thumbprint every page of the statement; there was a certificate (Uthibitisho) at the end of the
statement which was signed by both the recording officer and the appellant
(again by a thumbprint). There is no
claim that the few imperfections in the manner the statement was recorded in
any way prejudiced the appellant. We
dismiss the first and third grounds of appeal.
We now wish to discuss the second, fourth and fifth grounds of appeal
together.
We start
with an attempt to answer the question whether the caution statement, Exhibit
P2, was a confession.
Section 3 of the Law of Evidence Act,
1967 defines a confession as –
“(a) words or conduct, or a combination of both
words and conduct, from which, whether taken alone or in conjunction with the
other facts proved, an inference may reasonably be drawn that the person who
said the words or did the act or acts constituting the conduct has committed an
offence; or
(b)
a statement which admits in
terms either an offence which the person making the statement has committed an
offence (sic); or
(c)
a statement containing an
admission of all the ingredients of the offence with which its maker is
charged; or
(d)
a statement containing
affirmative declaration in which incriminating facts are admitted from which,
when taken alone or in conjunction with other facts proved, an inference may
reasonably be drawn that the person making the statement has committed an
offence”.
In the statement, Exhibit P2, the
appellant said that three other named persons asked him to go with them to
Namanga for an undisclosed task. They
all got into a car which was hired by one Babuu whom he knew before. He was not familiar with the other two. As they were being driven in the car one of
these people, Njoroge, ordered the driver to stop. The person wielded a pistol. The driver was then thrown to the back seat
and the said Njoroge took over the driving.
They took the driver to a coffee area in Ngaramtoni, drugged him and
abandoned him in what appears to be a coffee farm.
As they
drove back to Arusha
Municipality
We learn from
this narration that the appellant whether with or without prior arrangement was
with a group of three other persons who robbed a driver of his car at pistol
point. With this same group the driver
of the car was drugged and abandoned; the group tried to flee from police whom
they thought were chasing them. At no
point in time the appellant attempted to dissociate himself from this
group. He did not even suggest that he
wanted to dissociate himself from those he claimed wielded pistols. We think that so far his own words and
conduct show that he was party to the robbery incident. Those words and conduct amounted to a
confession in terms of section 3 (1) (a) of the Law of Evidence Act, 1967. Was the confession properly admitted as
evidence?
The first
appellate court did not directly address this question. But it is known from the evidence that when
the prosecutor sought to put in evidence the caution statement which contained
the confession referred to above, the appellant did not raise any objection,
not even when its contents were read out in court and PW1 – Detective Staff
Sergeant Pius – said that the appellant had admitted in the statement to have
committed “the offence”. In all
those circumstances there would have been nothing to raise doubt in the mind of
the trial magistrate that the caution statement could be admitted as
evidence. There was no claim by the
appellant that he made the statement following any form of inducement.
We know
that when the appellant was being cross-examined, apparently on his caution
statement, it was then he said “I have never written any statement”. Construed literally, he would be
correct. He did not himself write
Exhibit P2. It was Detective Staff
Sergeant Pius who recorded it. But he
may have meant to say that he never made
the statement which was written by Detective Staff Sergeant Pius. We already found that he actually made it but
he was trying to retract it. But he did
not give any reasons for retracting it.
There was
some legal argument during the hearing of this appeal whether a statement which
is a confession could be retracted after it was admitted as evidence and at the
defence stage of the proceedings. Mr.
Lundu cited some case law authorities, one of them the Hilku Mehi case. It was
contended by Mr. Lundu, and Mr. Mzikila conceded, that a trial within a trial
can be held in a district court trial where assessors do not sit, in order to
decide on the admissibility of an alleged confession.
In Hilku Mehi at issue was whether a
supposed confession was voluntarily made.
This Court said the trial court which was a District Court, should have
held a trial within a trial and that the fact that the appellant in that case
had not objected to the admission of the statement “did not make any difference with
regard to the voluntariness of the statement”.
It is
common knowledge that in a trial with the aid of assessors (in the High Court),
where the admissibility of any evidence is doubtful, for example a statement
imputed to an accused person, assessors are asked to retire temporarily and a
trial within a trial is held during which the admissibility or otherwise of the
disputed evidence is decided. If it is
decided that the evidence is not admissible because, for example, it was
obtained through torture of the accused, then such evidence is excluded and the
assessors will not hear it. If, however,
it is found to be admissible then the assessors will be called back into court
and the evidence will be given in their presence. It is said that the reason for holding the
trial within a trial in order to decide on the admissibility or otherwise of
disputed evidence is that assessors should not hear inadmissible evidence
because, being lay people they might not be able to exclude it from their minds
when addressing the court on the guilt or otherwise of the accused person. The judge can hear such evidence during the
trial within a trial and if he rules it inadmissible, being a legally trained
mind, he is capable of excluding it from influencing his decision in the case.
It is true
that in Hilku Mehi v. The Republic cited earlier this Court
said obiter that a trial within a trial could be held in a trial in a District
Court. In that case a caution statement
had been tendered and admitted in evidence without objection. Like in our present case, the accused person
in that case retracted the statement when he gave his defence. This Court said –
“In
the absence of a trial within a trial, it remained doubtful whether the
statement was freely made by the appellant if at all”.
But even having said the words quoted above the Court
said –
“In
this case, the crucial issue is the truthfulness of the alleged confession in
the caution statement”.
What is implied here is that the failure to hold the
trial within a trial was not critical in that case but rather the truthfulness
of the statement.
In Michael Luhuye v. R [1994] TLR 181, a confession was made as a result of violence on
the accused. The statement was adjudged
involuntary. The accused in that case
retracted the confession but the trial court relied on it without any
corroboration. It was held by this Court
that such an involuntary confession which was retracted needed
corroboration. Here the statement was
not rejected merely because there was no trial within a trial.
We will say
that normally the procedure of a trial within a trial is used in trials in
which assessors sit. It is not normally
used in trials in which a magistrate or a judge alone sit. We are not saying that in a trial in which
assessors who are lay people do not sit a court is absolved from the
responsibility to ensure that an alleged confession which is sought to be put
in evidence was made voluntarily before it is admitted as evidence. What we are saying is that such a magistrate
or judge does not have to conduct a trial within a trial as it is usually
understood. We therefore dismiss that
argument.
In this
case the appellant’s caution statement was admitted in evidence without
objection. However, the appellant having
retracted it when giving his evidence the trial court still had the duty to
satisfy itself from the circumstances in which the confession was made that it
was voluntary. We think that the
statement was voluntary because there was nothing in all the evidence to
suggest that it was obtained through undue influence. But having been retracted, the procedure is
to look for corroboration.
We think
the confession was corroborated by the evidence of Mashaka Waziri (PW2) and
Omari Hussein (PW4). PW2 said the
appellant and others “threw” him in a coffee shamba.
PW4 said he saw four people who were being chased by other people who
were crying “thieves, thieves”. Among
those four people was the appellant who shot the witness in the leg with a
pistol. The accused was then
arrested. It may be added that Joackim
Minja – PW3 – gave even more incriminating evidence corroborating the
appellant’s confession. He saw the
peugeout car diverting into the path in the coffee shamba. This witness was one
of the people who chased the car crying thieves, thieves. He saw that the appellant had a pistol. According to this witness the appellant shot
at himself and was thereby arrested.
We are
satisfied that the trial court was entitled to find on the strength of the
confession and the corroborating evidence that the appellant was one of the
bandits who committed the robbery and shot at PW4 causing him grievous
harm. He was therefore properly
convicted for those two offences and was duly sentenced.
Regarding
the conviction for attempted suicide we think there was doubt whether in fact
the appellant shot at himself. There was
no reason for him to do so. He said he
was accidentally shot by one of his colleagues who was trying to shoot at the
pursuing people. We think that was more
probable and we quash the conviction on that charge and set aside the sentence
of two years imprisonment which was imposed by the High Court for that offence.
In
conclusion, the appeal against the conviction for armed robbery and for causing
grievous harm is dismissed. The
sentences were lawful and are upheld.
DATED at ARUSHA this 29th day
of October, 2007.
J. A. MROSO
JUSTICE
OF APPEAL
S. N. KAJI
JUSTICE
OF APPEAL
E. M. K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(I. P. KITUSI)
DEPUTY
REGISTRAR
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