SAMUEL SILANGA v REPUBLIC 1993 TLR 149 (CA)

 

SAMUEL SILANGA v REPUBLIC 1993 TLR 149 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 32 OF 1993

21 May, 1993 D

(From the conviction and sentence of the High Court of Tanzania at Arusha, Mroso,

J.)

Flynote

Evidence - Burden of proof - Murder - Accused's right palm stained with blood which

appears to be recent and about which accused keeps quiet when asked - Whether

court may draw inference that accused's silence is not E consistent with his

innocence.

Evidence - Burden of proof - Shifting the burden to the accused - Accused's palm

stained with blood appearing to be recent - Whether requiring the accused to explain

how he got the blood stain amounts to shifting the burden F of proof to the defence.

-Headnote

The appellant was convicted of murder and sentenced to suffer death. He appealed

against both conviction and sentence. One ground of his appeal was that the burden

of proof was improperly G shifted to the defence when, being found to have his

right palm stained with blood, he was asked how he got it and he kept quiet. The

Trial Court inferred guilt because the appellant kept quiet on how he got blood on his

right palm. On appeal:

Held: (i) Once it was shown that the appellant's palm was stained with blood at

a time when murder H involving stab wounds had just been committed in the

neighbourhood, and no doubt suspicion was mounting high all over the place, one

would expect the appellant to explain how he got his palm stained with blood;

certainly it was in his best interest to do so;

(ii) The Trial Judge was perfectly entitled to draw the inference that the

appellant's silence I could not be consistent with innocence.

1993 TLR p150

Case Information

A Appeal dismissed in its entirety.

No case referred to.

Sabaya, for the appellant.

J. Mono, for the respondent.

[zJDz]Judgment

B Kisanga, J.A., delivered the following considered judgment of the court:

This is an appeal against conviction for murder contrary to s 196 of the Penal Code,

and the sentence of death imposed by the High Court (Mroso J) sitting here in

Arusha. The appellant is C represented by Mr Sabaya, Advocate and the respondent

Republic is represented by Mr J D Mono, Senior State Attorney.

The facts of the case may be summarised briefly as follows: The appellant is a brother

of the D deceased woman, and their houses were in the neighbourhood of each

other. Both of them were disputing over the ownership of a piece of land, and this

dispute was pending in Court when this incident happened.

E On the material night the deceased was sleeping in her house when she suddenly

noticed that her house was on fire and she tried to escape. The prosecution charged

that as she got out, the appellant attacked her with a knife inflicting a number of stab

wounds on her. She died in hospital only shortly afterwards as a result of the stab

wounds.

F The appellant's defence was a mere denial coupled with a claim that on the

material night he was sleeping in his house and did not go to the home of the

deceased. The High Court rejected that defence and accordingly convicted the

appellant as charged.

G Mr Sabaya filed and argued three grounds of appeal alleging inadequate

identification of the appellant at the scene of crime, basing the appellant's conviction

on uncorroborated evidence and shifting the burden of proof onto the appellant.

None of these grounds, however, has any merit. On the issue of identification there

was the evidence of Godfrey Lembris (PW1) and Solomon Nicolaus H Ukeled (PW2)

who testified that they saw and identified the appellant at the home of the deceased.

PW2 added that he saw the appellant actually stabbing the deceased and when the

appellant saw him approaching the scene he (the appellant) ran away. Both witnesses

who knew the appellant well before the incident, stated that they identified the

appellant through moonlight and also through the I fire from the burning house of

the deceased and that

1993 TLR p151

KISANGA JA

of PW1 which had also gone on fire. Indeed PW1 said that as he went out of his

house he saw and A identified the appellant who was only three paces away.

Mr Sabaya submitted that there was conflict between the evidence of PW1 and PW2

on the one hand and that of PW3 (Christopher Laizer) on the other. PW3 had stated

in his examination-in-chief B that there was no moonlight on the material night,

contrary to PW1 and PW2 who said that there was moonlight. Counsel, therefore,

contended that such conflict seriously weakened or rendered unreliable the

prosecution evidence respecting the means of identifying the appellant at the scene of

crime that night. The Trial Judge considered this issue. His views was that even if

there was no C moonlight that night, there was light from the burning houses by

which the appellant was adequately identified by the witnesses. While endorsing that

view, we are prepared to go further. It is noted that PW3 in his cross-examination by

the prosecution is recorded as saying that he could not quite D remember if there

was moonlight that night. We think that this fact could provide no good reason for

discounting or reasonably doubting PW1 and PW2 who positively stated that there

was moonlight on the material night. Had PW3 been consistent and maintained his

earlier position that there was no moonlight that night, the view might have been

different. E

Nor did the appellant's conviction rest on the evidence of visual identification alone.

He was based also on a number of pieces of circumstantial evidence. There was the

dying declaration of the deceased who told PW1, PW2 and PW3 at the scene that it

was the appellant who had injured her. F Later on at the hospital PW6, a police

officer, also recorded her statement to the same effect.

There was evidence that during the fracas that night the deceased and her sons, PW1

and one Julius, raised the alarm as they called for help and neighbours, including

PW3, went to the scene in answer to such an alarm. However, the appellant who was

also a neighbour did not show up. One G wonders why he did not? When the police

called on him that same night and asked him to come out of his house after they had

duly identified themselves, he refused to open the door until the police threatened to

break it. The inference to be drawn is that the appellant declined to answer the alarm

or to open the door because he knew that he had done wrong and he was now afraid

of the H consequences.

What is even more suspicious is that upon coming out of his house, his right palm was

stained with blood which appeared to be recent but on being asked how he got it he

kept quiet. Mr Sabaya I submitted that

1993 TLR p152

A the Court was not entitled to view the appellant's silence as something that went

against him. He contended that to require the appellant to explain how he got his

palm stained with blood amounted to shifting the burden of proof to the defence.

With due respect to the learned Counsel, we think that such criticism is unjustified.

Once it was shown that the appellant's palm was stained with blood at a B time

when murder involving stab wounds had just been committed in the neighbourhood,

and no doubt suspicion was mounting high all over the place, one would expect the

appellant to explain how he got his palm stained with blood; certainly it was in his

best interest to do so. It was odd, however, C that in the face of such circumstances

he kept quiet when asked about it. We think that the Trial Judge was perfectly

entitled to draw the inference that the appellant's silence could not be consistent with

his innocence.

And lastly, there was the evidence of bad blood between the appellant and the

deceased on account D of a dispute over a piece of land and that the dispute was

pending in Court when the killing occurred. That would provide motive for the

appellant to eliminate his rival.

We are satisfied that all this evidence amply demonstrated that appellant's guilt

beyond any E reasonable doubt. There is no merit in the appeal which is accordingly

dismissed in its entirety.

1993 TLR p152

F