IN THE COURT OF APPEAL OF
AT MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And KAJI, J.A.)
CRIMINAL
APPEAL NO. 79 OF 1999
1. STEVEN S/O JASON ]
2. WILLIAM @ BATHARUHEKA @ ]
………………………..APPELLANTS
KAJAMBO S/O KANANI ]
3. KEKIRIA D/O SAMSON ]
AND
THE REPUBLIC …………………………………………………….
RESPONDENT
(Appeal from
the conviction of the High
Court of
Tanzania at Bukoba)
(Mrema,
J.)
dated the 4th
day of June, 1999
in
Criminal
Sessions Case No. 188 of 1991
-----------------
JUDGMENT
OF THE COURT
LUBUVA,
J.A.:
This is an appeal against conviction and
sentence of death imposed on the appellants by the High Court (Mrema, J.)
sitting at Biharamulo. The appellants
were charged with and convicted of the murder of Etheri w/o Dawson
The prosecution case was that during the
night of 3.5.1990 when the deceased was sleeping in her house, a gang of
bandits forced open the door leading to her bedroom using a big stone popularly
known as “fatuma”. She was fatally
wounded by use of a sharp weapon. Her
dead body was found lying a few paces from the main door of the house in a pool
of blood. Police investigation led to
the arrest of the appellants.
At the trial, the evidence against the
appellants was largely circumstantial.
First, the evidence of PW1, PW2, and PW3 to the effect that the 3rd
appellant, Kekiria d/o Samson had arranged with the first and second appellants
to kill the deceased. Second, the
caution statements of the appellants (Exhibits P5, P6 and P7) and the
extra-judicial statements (Exhibits P9, P10 and P11). Although the appellants had retracted these
statements on the ground that they were forced through torture, counsel for the
appellants did not object against the statements being tendered in court as
evidence. The learned trial judge held
that due to failure of the defence to object against the admission of the
statements, the voluntariness, or otherwise of the statements could not be
tested. Nonetheless he held that the
statements were voluntary and truthful.
Based on this evidence, the appellants were convicted, being
dissatisfied, this appeal has been preferred.
In this appeal, Mr. Muna, learned
counsel, advocated for the appellants and Mr. Rwabuhanga, learned State
Attorney, appeared for the respondent Republic.
Mr. Muna filed the following grounds of appeal:
1. The
learned trial judge had erred in that by holding that exhibits P4 and P9
amounted to confessions and that they were obtained from the first appellant on
his own free will and without any torture.
2. That
the learned trial judge had erred in law by failing to consider the evidence of
torture raised by 1st and 2nd appellants at the time of
extracting Exhibits P4, P6 and P7 on the ground that the same were not objected
to by the defence counsel before the closure of the prosecution case.
3. That
the learned trial judge erred in law by relying on Exhibits P5 and P12 by
Ibrahim Mapengo, a co-accused, in finding the appellants guilty of the murder
of Etheri Dawson.
4. That
the learned trial judge had erred in law by holding that the circumstantial
evidence obtaining in the case irresistibly point towards the guilty of the
appellants.
Mr.
Muna argued these grounds together.
First, he stated that the second and third appellants were implicated by
the caution (Exh. P4) and extra-judicial (Exh. P9) statements of the first
appellant. He further contended that
these statements were made under torture in which case they should not have
been admitted in evidence or relied upon by the trial judge. He maintained that the first appellant was
not a free agent when he made the statements to the police and the Justice of
the Peace. That the first appellant was
tortured is evident from the fact that the Justice of the Peace indicated that
he observed four bruises on the back of the first appellant, Mr. Muna
stressed. Counsel further submitted that
once it had been brought to the notice of the trial judge that torture was
involved when the statements were extracted from the first appellant, it was
incumbent upon the judge to be cautious in accepting or relying on the
statements as evidence against the appellants.
Counsel also urged that it was not proper for the trial judge to hold
that as the defence had not objected when the statements were tendered in
evidence at the trial, the appellant could not be heard at a later stage
complaining against the admissibility of the statements.
With
regard to the extra-judicial statement (Exh. P9) of the first appellant, Mr.
Muna had also raised another point. He
said when the statement was made, the first appellant still had fresh memories
of his torture by the police. In that
situation, it was not a free and voluntary statement, he stressed.
Finally,
Mr. Muna submitted that as the second and third appellants were convicted on
the basis of the first appellant’s caution and extra-judicial statements, once
it is accepted that these statements were inadmissible, then there was no
evidence upon which to ground the conviction against them. On the other hand, Mr. Muna urged that even
if it is accepted that the statements were admissible, still the case against
the appellants would not be advanced any further because there was no
independent evidence to corroborate the statements. So, he firmly insisted that the case against
the appellants had not been proved conclusively.
On
his part, Mr. Rwabuhanga, learned State Attorney, countered the submissions by
Mr. Muna. According to him, the
statements (Exh. P4 and Exh. P9) were made freely by the first appellant. For instance, he said before the Justice of
the Peace there was no threat, torture or force applied which would instill
fear in the first appellant to make false confession. There was no reason whatsoever for the first
appellant to entertain fear that unless he told the Justice of the Peace what
he alleged the police had forced him to say, he would similarly be subjected to
torture, the State Attorney submitted.
As the defence did not object to the admission of the statements, Mr.
Rwabuhanga charged that the learned trial judge cannot be faulted in admitting
the statements (Exhibits P4 and P9). He
also said that although the statements Exhibits P4 and P9 do not strictly amount
to a confession in terms of Sections 27 and 28 of the Evidence Act, 1967, the statements
heavily implicated the first appellant as a participant to the killing of the
deceased.
It
is common ground that the case against the appellants is entirely based on
circumstantial evidence. There was no
eye witness to the killing of the deceased. The critical evidence against the
appellants which the learned trial judge relied on was based on the statements
of the first appellant Exh. P4 and P9.
With regard to the caution statement (Exh. P4) Mr. Muna sought to fault
the learned trial judge in not satisfying himself that the statement was voluntary. The statement having been tendered in
evidence during the trial without objection by the appellant who was duly
represented, we can see no basis for faulting the trial judge on this aspect. In the absence of any objection to the
admission of the statement when the prosecution sought to have it admitted, the
learned trial judge could not suo motu, hold a trial within a trial to test the
voluntariness of the statements as Mr. Muna seemed to suggest.
Ordinarily,
when the admission of evidence is objected on the ground that such evidence was
obtained involuntarily the trial court orders a trial within a trial in order
to enquire into its voluntariness or otherwise.
In this case, as just observed, there was no ground for holding a trial
within a trial. So, the learned trial
judge was justified in admitting the statements. We find no merit in Mr. Muna’s complaint in
this regard.
However
it is common ground that the admissibility of evidence during the trial is one
thing and the weight to be attached to it is a different matter. In this case, it is clear from the record
that after closing the prosecution case, long after the caution statement had
been admitted as exhibit P4 the first appellant alleged in his defence that he
made the caution statement under torture by the police who beat him. On this, the record also shows that the
Justice of the Peace before recording the extra-judicial statement, (Exh. P9)
observed four bruises on his back. Furthermore, the first appellant’s claim of
torture while in the custody of the police was backed by visible marks of
injuries. It was therefore incumbent
upon the learned trial judge to be more cautious in the evaluation and
consideration of the caution statement.
In the light of the unfolding evidence of torture to the first appellant
the trial judge was as it were put on notice to analyse the evidence
closely. Apparently, the judge was awake
to the allegation of torture. This is evident
from the judgment which in part, reads:
Accused
Steven also told this court that the OCS (Chande), Ernest (PW3) and Police
Hamis forced him to repeat words which were being said by Police Ernest (PW3)
and Chande was recording them. Then at
the end of the day he was forced to sign the statement upon assaults against
his private parts by use of a plier.
This is another bewilderment. The
defence did not also raise objection against the admission of Steven’s caution
statement to PW3 because their learned defence counsel Mr. Katabalwa was
definitely aware of the consequence that would follow if, on behalf of the
accused, he would raise such objection.
Thus the allegation raised by the accused after the closure of the
prosecution case could not be tested through the alleged tortures (PW3), OCS
Chande and Police Hamis. By allowing the
admission of the contents of exhibit P4 and exhibit P9 to form part of the
record without demanding for their being tested by examining and
cross-examining the witnesses who had their connection with the said exhibits
it would mean that the defence approved their validity and or authentication
and as such, in my considered view, the defence cannot now, at the disadvantage
of the prosecution, abhor exhibits P4 and P9.
From
this extract, it appears to us that the learned trial judge took the view that
once the defence had not objected to the admission of the caution statement
(Exh. P4), no further complaint of dissatisfaction against the statement should
be entertained. With respect, we do not
agree with this view. In our opinion,
what the defence was seeking to establish at the stage reached in the trial was
that in the light of the evidence that torture had been involved, the caution
statement should not be relied upon in convicting the first appellant. In the light of the fact that the first appellant
had sustained injuries which he alleged were caused by the police, there was
sufficient basis for the judge to attach little if not no weight at all to the
caution statement (Exh. P4). The fact
that the admission of the statement was not objected to by the defence does not
in our view, preclude the trial court from addressing its mind on the evidence
(Exh. P4) closely when analyzing it.
In the circumstances, having regard to
the fact that the first appellant, Steven s/o Jason, had sustained injuries on
his back which he alleged were caused by the police while in police custody,
the judge should not have accorded any weight to the caution statement (Exh.
P4) of the first appellant. That is, the
caution statement should have been discounted as evidence against the first
appellant.
After discounting the caution statement
(Exh. P4) of the first appellant, there is still the extra-judicial statement
(Exh. P9). This, Mr. Muna also urged
that it was not voluntary on the part of the first appellant because memories
of torture by the police were still fresh in his mind. It is to be observed that the first appellant
was arrested by PW3 on 5.5.1990 when in the course of investigation, his
caution statement Exh. P4 was recorded on 7.5.1990. For reasons already explained, we have held
that as it was doubtful that the statement was voluntary, the benefit of doubt
should be resolved in favour of the first appellant by discounting the
statement.
Briefly, we shall examine the
circumstances in which the extra-judicial statement was made. From the record it is apparent that on
11.5.1990 the first appellant made the extra-judicial statement to the Justice
of the Peace D.H. Lukindo, District Magistrate.
Following the procedure laid down in the Chief Justice’s Instructions to
Justices of the Peace, it is indicated that the magistrate made it plainly
clear that the first appellant was before a magistrate as a Justice of the
Peace. The first appellant was informed
that he was free to make a statement if he so wished which could be used as
evidence against him at the trial. Upon
examining the first appellant’s body, the Justice of the Peace observed four
bruises on his back. As just observed,
these marks of injuries which the first appellant alleged he sustained while in
police custody were the basis of our decision to discount the caution statement (Exhibit P4).
With regard to the extra-judicial
statement (Exh. P9) the issue is whether it was voluntary. The learned trial judge was of the settled
view that it was voluntary and true. Considering
all the circumstances relating to the time when the first appellant was brought
before the Justice of the Peace until the statement was recorded, we are unable
to accept Mr. Muna’s allegation that the statement was made when the first
appellant was still haunted by fear of torture. In the first place, unlike the situation
obtaining on 6/5/1990, when the caution statement was made to the police, the
allegation of torture was backed by visible signs of torture and injuries, the
circumstances pertaining to the extra-judicial statement were different. From the declaration of the Justice of the
Peace there was no basis for fear of torture.
On the other hand, if, as Mr. Muna
alleged, the first appellant was forced to make the statement to the Justice of
the Peace, there was no reason why he did not tell the Justice of the Peace
that he had been forced to come to make the statement. At the trial, the first appellant claimed
that when he was making the extra-judicial statement before the Justice of the
Peace, a policeman whose name he had forgotten, was holding his trousers from
behind holding a pistol. The policeman
was telling the first appellant to tell the Justice of the Peace what he, the
appellant, had told the police. Suffice it to say that the learned trial judge
was justified in rejecting this claim as fiction on the part of the first
appellant. It is incredible that a
magistrate of whatever level, would be so naïve as to allow a policeman to hold
the accused person while recording the extra-judicial statement. In this case the magistrate involved was a
District Magistrate. Like the trial
judge, we have no reason to doubt the declaration by the magistrate as a
Justice of the Peace that the policeman was sent away when the extra-judicial
statement (Exh. P9) was recorded.
Furthermore,
we also find Mr. Muna’s claim that at the time the first appellant made the
extra-judicial statement on 7.5.1990, he was still haunted by fear of torture
he had undergone when the police recorded the caution statement untenable. When the extra-judicial statement was taken
on 11.5.1990, it was about five (5) days after the caution statement. This, in our view, was sufficiently long for
the appellant to cool down and appreciate that he was before a magistrate and
not a police officer. He had no cause
for fear particularly after the explanation and questions by the Justice of the
Peace. We reject the allegation that the
first appellant was still haunted by fear when the first appellant made the
extra-judicial statement. In our view, he
was a free agent.
We
shall next consider the evidential value of the extra-judicial statement of the
first appellant. In doing so, sight
should not be lost of the legal position as set out under section 33 (1) of the
Evidence Act, 1967 regarding confessions against co-accused. In terms of the provisions of section 33 (1)
of the Evidence Act, 1967 when two or more persons are being tried jointly for
the same offence or for different offences arising out of the same transaction,
a confession of the offence by one of the accused persons affecting himself and
the other person may be taken into consideration against the other person.
In
this case from the extra-judicial statements (Exh. P10 and Exh. P11), the
second and third appellants denied any involvement in the killing of the
deceased. Likewise, their caution
statements do not incriminate them either.
So, in terms of the provisions of sections 28 and 33 (1) of the Evidence
Act, 1967, the extra-judicial statements of the second and third appellants are
strictly speaking, not confessions. They
are statements in which the second and third appellants were dissociating
themselves from the alleged killing of the deceased. However, in her extra-judicial statement Exh. P11), the third appellant confirms that
the coat which was found with the first appellant belonged to Dawson who was at
one time her husband. According to her
statement, during the incident, the coat was in the house of the deceased. This evidence together with the fact that the
first appellant showed PW3 where the coat was hidden in his house, corroborated
the first appellant’s extra-judicial statement (Exh. P9) in which he admits being
present at the scene throughout the time when the deceased was killed.
With
regard to corroboration, it is also to be observed that we do not agree with
the learned trial judge in holding that the first appellant’s extra-judicial
statement (Exh. P9) was corroborated by the evidence of PW1, PW2 and PW3 in
connection with the 3rd appellant’s evil design to revenge against
the deceased in 1988. In our view this
is not corroborative evidence to the extra-judicial statement regarding the
killing of the deceased on 3.5.1990. If
anything at all, this may well be relevant to the motive for killing the
deceased.
As
observed earlier, the only evidence against the second and third appellants was
the extra-judicial statement (Exh. P9) of the first appellant. The first appellant being a co-accused,
according to section 33 (2) of the Evidence Act, 1967 his evidence in the
extra-judicial statement (Exh. P9) alone cannot be the basis of the conviction
against the second and third appellants.
In the instant case, since the first appellant’s extra-judicial
statement was not corroborated or supported by other independent evidence
against the second and third appellants the conviction against them was not
properly founded. Once the
extra-judicial statement is discounted as regards the second and third
appellants, there is no leg on which the case against them can stand.
In
our view, the situation regarding the first appellant is different. His extra-judicial statement (Exh. P9) if
believed to be truthful which was corroborated, was sufficient basis for
founding conviction against him. The
learned trial judge found the extra-judicial statement truthful and we can find
no fault in this finding. In the
extra-judicial statement (Exh. P9) the first appellant sets out in detail how
he, together with the second appellant and Ibrahim @ Mapengo s/o Gwasa now
deceased, were approached by the third appellant, Kekiria d/o Samson in order
to effect the plan of killing the deceased.
For the task, the statement further reveals, the third appellant
promised to pay shillings 20,000. The
first appellant in his extra-judicial statement claims to have declined the
offer stating:
Mimi
nikasema hata zingekuwa elfu sitini (60,000/=) mimi siwezi kufanya majanga
hayo, na Gwasa Rugoshi akasema hivyo hivyo
… Tuliwasubiri watuonyeshe njia toka Maivuza kwenda Kanazi. Kekilia alituonyesha mimi na Julius njia ya
kutoka Maivuza kwenda Kanazi. Marehemu
alifia pale pale. Tulipandisha hadi
kufika katika shamba la kahawa la kijiji cha Mugoma, hapo Kekilia akasema wewe
Stephen pamoja na Gwasa zile elfu ishirini (20,000/=) Julius amezishia hapo
baadhi ya vitu walivyochukua kwa sehemu kilianguka ilikua koti, nilikota na
Kekilia akasema atalichukua kwangu Kanazi akienda kwa Julius … Julius hakuja
kulichukua haraka na likakutwa kwangu na polisi.
From
this extract, the question is whether the first appellant was a participant to
the killing of the deceased. The
detailed account of the initial stages of the plan to kill the deceased, the
role played by each of the appellants in the plan and the sequence of events
leading to the death of the deceased, could not in our view, be given by a
person who was not either a party to the plan or had knowledge of it. Otherwise, it is inconceivable that all this
information was thrust upon the first appellant by the Justice of the Peace or
someone else as he claims. During the
trial the first appellant claimed that the coat was his own property which he
bought from a Burundi
The next question is whether the first appellant’s
presence at the scene where the deceased was killed was a passive spectator or
was it purposeful and intentional. For
our part, we think the first appellant was not a mere passive spectator, his
presence was such that it could be inferred that he approved of the
offence. If, as he claimed in his
defence, that he was not prepared to be party to the killing of the deceased
even if a higher payment of shillings 60,000/= was offered , why did he remain
at the scene all the time until the deceased was killed. With the alleged disapproval of the planned
killing of the deceased, ordinarily, he would have left the scene of crime
immediately or at least, later, report to government authorities. Instead, not only did he remain there but
also accompanied the second and third appellants all the way from the scene to
his house with the coat taken from the deceased’s house. The first appellant’s conduct throughout the
time when the deceased was killed, cannot, in our opinion be explained
otherwise than that he was there purposely encouraging the execution of the
agreed plan to kill the deceased.
In the circumstances of the case, we
think the provisions of section 22 (c) of the Penal Code aptly apply. In Damiano
Petro and Jackson Abraham v. Republic (1980) TLR 260 the issue was whether
the evidence was sufficient to prove the offence of aiding and abetting. Discussing the application of section 22 (c)
of the Penal Code, in part, the Court said:
Second
accused should not have been convicted as aider and abettor as mere presence at
the scene of crime is not enough to constitute a person an aider or abettor;
the person must also participate in the crime to some extent. The
appellant’s presence witnessing the commission of the offence was such
that as he did not express his dissent, it can reasonably be inferred that he
willfully encouraged the killing of the deceased. So, he aided and abetted the offence of
killing the deceased.
The
principle of aiding and abetting was also enunciated in the English case of R v. Coney and Others (1882) 8 Q.B.D.
534. See also the Court’s decision in Makokoi
Chandema v. Hassan Mtete, Criminal Appeal No. 193 of 1999.
Furthermore, apart from the appellant’s
purposeful and intentional presence witnessing the commission of the offence of
killing the deceased, he is also implicated by Dawson Dawson Dawson
For
the foregoing reasons, we are constrained to allow the appeal in respect of the
second and third appellants, namely, William @ Batharuheka @ Kajambo s/o Kanani
and Kekiria d/o Samson. Their conviction is quashed and sentence set aside. They are to be released from custody
forthwith unless otherwise lawfully held.
The appeal in respect of the first appellant, Steven s/o Jason is
dismissed in its entirety.
DATED at DAR ES SALAAM this 29th
day of July, 2004.
D.Z. LUBUVA
JUSTICE
OF APPEAL
J.A. MROSO
JUSTICE
OF APPEAL
S.N. KAJI
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
( S.M. RUMANYIKA )
DEPUTY
REGISTRAR
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