HEMED ABDALLAH v REPUBLIC 1995 TLR 172 (CA)

HEMED ABDALLAH v REPUBLIC 1995 TLR 172 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Makame JJA, Omar JJA and Lubuva JJA B

Criminal Appeal No 167 of 1994 C

June 1, 1995

(From the decision of the High Court of Tanzania at Dar es Salaam, Bahati, J)

Flynote

Evidence - Confession - Retracted confession - Court accepts such evidence - Court

warns itself of the danger of convicting on the basis of the uncorroborated retracted

confession - Whether Court must give reasons. D

-Headnote

The High Court convicted the appellant of murder on the basis of his retracted

confession. Before convicting the court warned itself of the danger of basing the

conviction on an uncorroborated retracted confession. On appeal the appellant argued

that the trial court's conviction should be faulted because the learned Trial Judge did

not give reasons why he relied on the uncorroborated confession. E

Held:

(i) Generally it is dangerous to act upon a repudiated or retracted

confession unless it is corroborated in material particulars or unless the court, after

full consideration of the circumstances, is satisfied that the confession must but be

true; F

(ii) Once the trial court warns itself of the danger of basing a conviction on

uncorroborated retracted confession and having regard to all the circumstances of the

case it is satisfied that the confession is true, it may convict on such evidence without

any further ado; G

(iii) It is not a requirement of the law that reasons have to be given for the

trial court's finding that there is no danger in accepting a retracted confession;

(iv) The learned Trial Judge found no danger in founding a conviction on

the confessional statement because he was satisfied that the confession was true. H

Case Infomation

Appeal dismissed.

Cases referred to:

(1) Tuwamoi v. Uganda [1967] EA 84

(2) Bombo Tomola v. R [1980] TLR 254 I

1995 TLR p173

LUBUVA JA

(3) Ali Salehe Msutu v. R [1980] TLR 1 A

(4) Hatibu Gandhi alias Captain Hatty Macghee, Criminal Appeal No 3 of 1986

(Unreported)

Kalolo for the appellant.

Kiwanga for the respondent. B

[zJDz]Judgment

Lubuva, JA, delivered the following considered judgment of the court:

In a trial before the High Court (Bahati, J) sitting in Dar-es-Salaam the appellant,

Hemed Abdallah was charged with and convicted of murder contrary to s 196 of the

Penal Code. He was sentenced to death. This appeal is against the conviction and

sentence. C

Briefly, the facts of the case as established by the prosecution are simple. They are

that the appellant and the deceased were man and wife who lived at Mlandizi, Kibaha

District, Coast Region. At the trial the prosecution case against the D appellant was

wholly based on the statement which the appellant had made to the police and the

extra judicial statement. There was no witness who saw the appellant attacking the

deceased. Rashid Abdallah (PW1) the elder brother of the appellant is the only

witness whose evidence throws light on the background to the tragic death of the

deceased and what happened shortly after the incident. According to PW1, the

appellant and the deceased led an unhappy family life E because the appellant

suspected the deceased, his wife, of having sexual affairs with other men. The

appellant thus threatened to divorce the deceased but PW1 managed to effect a

reconciliation between the appellant and the deceased. It was F PW1's further

evidence that on the day of the incident which was not long after the reconciliation,

PW1 called at the house of the appellant where he (PW1) found the deceased already

dead with a serious injury on her head. PW1 also saw an axe stuck on the head of the

deceased. The appellant was nowhere around the G scene of crime when PW1

arrived. He (appellant) was arrested the next day as he was coming from a nearby

forest where he had been hiding.

As already indicated, the next crucial evidence against the appellant was the extra H

judicial statement (Exhibit P1) which the appellant had made to the Justice of the

Peace (PW3). In this statement, the appellant clearly admits killing the deceased by

using an axe. A detailed narration of the event leading to the death of the deceased is

set out in the statement.

At the trial defending himself in a sworn statement the appellant I

1995 TLR p174

LUBUVA JA

A retracted the extra judicial statement. He claimed that the statement was made

under duress and that the police had forced him to repeat before the Justice of the

Peace what he had stated in the statement to the police. Having retracted the

confessional statement, the appellant vehemently denied any involvement in the

death of the deceased. He further claimed that he could not have killed the B

deceased because on 25 August 1984, when the incident took place, he had gone to

the forest to check on his traps and returned home the following day when he found

his wife dead. The learned Trial Judge after holding a trial within a trial was satisfied

that the appellant had voluntarily made the extra judicial statement and that it was

true. Consequently, the appellant was convicted on the basis of this evidence. C

In this appeal the appellant, who was represented by Mr Kalolo, learned counsel, filed

two grounds of appeal. Firstly, it was contended that the trial court erred in law and

fact in convicting the appellant on the basis of the repudiated and retracted D

statements. Secondly, that the trial court erred in law in finding and holding that

malice aforethought had been proved. In regard to ground one, Mr Kalolo, learned

counsel submitted that as the appellant had retracted the confessional statement to

the Justice of the Peace, it was not enough for the Trial Judge to warn himself of E

the danger of convicting on the basis of such evidence. The learned Trial Judge had to

give reasons why he considered that there was no danger in basing a conviction on

the evidence in this case. As no reasons were given in the instant case, Mr Kalolo,

learned counsel, urged it was erroneous on the part of the learned F Trial Judge to

convict the appellant solely on this evidence.

Responding to the appellant's argument on this ground, Ms Kiwanga, learned State

attorney who appeared for the Republic, respondent maintained that the retracted

extra judicial statement was properly admitted by the learned Trial Judge who had G

followed the proper procedure in holding the trial within a trial. Furthermore, Ms

Kiwanga, learned State attorney submitted that in coming to the conclusion to

convict the appellant the learned Trial Judge was not influenced by one single H

factor but had taken into account all the surrounding circumstances of the case. For

instance, Ms Kiwanga pointed out the details of the sequence of events leading to the

death of the deceased which were given by the appellant; the family life of the

appellant and the deceased as given by Rashid Abdallah (PW1), the elder brother of

the appellant; the question of torture was not raised at the trial within a trial and not

with the Justice of the Peace I

1995 TLR p175

LUBUVA JA

and no marks of injuries were seen when the appellant was physically examined A

by the Justice of the Peace. On the basis of these factors, Ms Kiwanga insisted the

learned Trial Judge was justified in his finding that the confession was but true.

As the prosecution case against the appellant is solely based on the retracted

confessional statement to the Justice of the Peace, we think the only issue in B

disposing of this appeal to the propriety of admitting the retracted statement (Exhibit

P1). In order to resolve this issue we think it is necessary to look at the various

surrounding circumstances. In the first place, as correctly pointed out by Ms Kiwanga,

learned State attorney, it is common ground that there was no C witness who saw

exactly what happened at the scene of crime when the deceased was killed. Rashid

Abdallah (PW1) the elder brother of the appellant came to the scene after the death

had taken place, in which case he was not in a position to give evidence on what

exactly happened at the time. All that emerges D from the evidence of this witness

(PW1) is the historical background relating to the life of the appellant and the

deceased prior to the death of the deceased. That being the case, it beats our

imagination as to how all the details pertaining to the sequence of events leading to

the death of the deceased were obtained and included in the appellant's extra judicial

statement to the Justice of the Peace. Who else could have supplied such details if not

a person who either saw the E incident or was involved in it. Here there was no

other person who witnessed the incident which led to the death of the deceased. As

the statement was made by the appellant, it is to our minds highly unlikely that

somebody else other than the appellant could have fitted in all the details in the

statement. F

That is not all. According to Yusuf S Mperella (PW3) the Justice of the Peace, when

the appellant was brought before him (PW3), the appellant was cautioned that he was

before a Justice of the Peace and that he was free to tell PW3 what G had happened

in relation to the incident if he so wished. There were no policemen around then but

still the appellant did not raise the question of having been tortured or forced to make

any statement by the police or anybody else. A physical examination by PW3 of the

body of the appellant did not reveal any marks of H injuries on his body. In that

situation, we think, and as correctly submitted by Ms Kiwanga, learned State

attorney, the question of torture was nothing but an after-thought. We are not

convinced that the learned Trial Judge can be faulted in his ruling that torture was

not involved.

We will now deal with the main ground argued by Mr Kalolo, I

1995 TLR p176

LUBUVA JA

A learned counsel in this appeal. As already pointed out, Mr Kalolo had submitted

and argued at considerable length that it was erroneous for the Trial Judge admitting

and relying on uncorroborated confession in the extra judicial statement without

giving reasons why he found no danger in convicting the appellant on the basis of the

retracted statement. On this submission, we are constrained to say B that we find it

attractive as well as novel. This is so because the law on retracted or repudiated

confessions is settled. It is trite law that generally it is dangerous to act upon a

repudiated or retracted confession unless it is corroborated in material particular or

unless the court after full consideration of the circumstances is C satisfied that the

confession cannot but be true. This cardinal principle which was, in our view and

with respect, properly addressed by the learned Trial Judge has been restated in a

number of cases by this court as well as the Court of Appeal for East Africa. Among

others, see: Tuwamoi v Uganda (1), Bombo Tomola v R (2), D Ali Salehe Msutu v R

(3), Hatibu Gandhi alias Captain Hatty Macghee v R (4).

On the basis of the principle set out in these cases, we are unable to accept Mr

Kalolo's contention that the learned Trial Judge had to give reasons for his finding

that it was not dangerous to found a conviction on the retracted confession. This is E

so because there is no legal requirement that reasons have to be given by the trial

court for accepting a retracted or repudiated confession. This principle was

underscored by the Court of Appeal for East Africa in the Tuwamoi case (supra). In

that case it was stated inter alia: F

'... 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 in all the circumstances of the case that the confession is true ...'

(Emphasis supplied). G

In our understanding, what is required is that in dealing with a retracted confession,

once the trial court warns itself of the danger of basing a conviction on such evidence

and having regard to all the circumstances of the case it is satisfied that the confession

is true, it may convict on such evidence without any further H ado. This is what the

learned Trial Judge did in the instant case. Addressing himself on this issue the

learned judge said:

I have considered the danger of acting on a repudiated confession without

corroboration. I have found no such danger because I am satisfied that the confession

cannot be but true. I

1995 TLR p177

LUBUVA JA

From this it is clear to us that the learned Trial Judge found no danger in founding A

a conviction on the confessional statement for the reason advanced, namely that he

was satisfied that the confession was true. In that case, Mr Kalolo's submission that no

reason was given by the learned Trial Judge in accepting the confessional statement is,

with respect, unfounded. Reason had been given. At B any rate, as we have already

shown, even if there was no reason advanced, we are satisfied that such being the

position of the law on this point as amply demonstrated, the criticism raised by Mr

Kalolo is, with respect, untenable. It is not a requirement of the law that reasons have

to be given for the trial court's finding that there is no danger in accepting a retracted

confession. Like the learned Trial C Judge, we are satisfied that taking into account

all the circumstances of the case, the learned Trial Judge was justified in his finding

that the extra-judicial statement was but true. It was properly accepted.

We will now briefly deal with the last ground of appeal. As filed, this is ground two.

D In this ground, Mr Kalolo, learned counsel for the appellant argued that as the

appellant and the deceased were not living harmoniously, the appellant was provoked

by the deceased's behaviour of mimicking him (appellant). And so there was no

malice aforethought on the part of the appellant, who should therefore have been

found guilty of the lesser offence of manslaughter, Mr Kalolo argued. In E rebuttal,

Ms Kiwanga, learned State attorney submitted that the background leading to the

incident was such that the act of the deceased to mimic the appellant was not enough

provocation. It was an intended act of killing Ms Kiwanga submitted. On the question

of malice aforethought we need not labour much. Having taken the F view that the

confessional statement was properly admitted, we are satisfied that there was

sufficient evidence upon which to sustain the conviction of the appellant. The

appellant killed the deceased with malice aforethought. We are settled in our minds

that the learned Trial Judge was justified in his conclusion that on the facts of the

case, the defence of provocation was not available to the appellant. This G ground is

also rejected.

For these reasons we dismiss the appeal in its entirety. H

1995 TLR p178

A