JOSEPHAT SOMISHA MAZIKU v REPUBLIC 1992 TLR 227 (HC)

 

JOSEPHAT SOMISHA MAZIKU v REPUBLIC 1992 TLR 227 (HC)

Court High Court of Tanzania - Tabora

Judge Katiti J

19 August 1992 D

Flynote

Evidence - Confession - Admissibility of confessions extracted by torture - S.29 -

Evidence Act 1967.

Evidence - Confession - Admissibility of confessions made before a police officer -

S.27 Evidence Act 1967. E

-Headnote

Josephat Somisha alias Maziku the appellant, was at the material time, employed as a

watchman by Tabora Region Co-operative Union. On 1/5/90, it was discovered that

18 louver glasses had been extracted from windows and one typewriter stolen. F

Through interrogation by Sungusungu, the appellant confessed to have stolen the

louver glasses but not the typewriter. The appellant, in his cautioned statement to

7909 D/Cpl. Benjamin, further confessed to have stolen the louver glasses.

On the strength of this evidence, the trial Magistrate convicted the appellant on the

G charge of stealing by public servant c/s 270 and 265 of the Penal Code. In his

memorandum of appeal, the appellant contended that his confessions to the

Sungusungu was extracted by threats and with violence.

Held: (i) While it is trite law that the condition precedent for the admissibility of a H

confession is its voluntariness, a confession is not automatically inadmissible simply

because it resulted from threats or promise, it is inadmissible only if the inducement

or threat was of such a nature as was likely to cause an untrue admission of guilt; I

1992 TLR p228

KATITI J

(ii) where you have threats and a confession far apart without a causal A

connection, and no chance of such threats inducing confession, such confession

should be taken to be free of inducement, voluntary and admissible;

(iii) it is a principle of evidence that where a confession is, by reason of threat,

B involuntarily made, and is therefore inadmissible, a subsequent voluntary

confession by the same maker is admissible, if the effect of the original torture, or

threat, has before such subsequent confession, been dissipated and no longer the

motive force behind such subsequent confession. C

Case Information

Appeal dismissed.

Oswald, for the respondent

[zJDz]Judgment

Katiti, J: Charged and indicted, before Tabora District court, with the offence of D

stealing by public servant, c/s 270 and 265 of the Penal Code, was Josephat s/o

Somisha alias Maziku, herein to be called the appellant, whose plea of not guilty

thereto, introduced the case to full trial. At the end of the trial, the appellant, found

himself on the wrong side of the law - was convicted as charged, and finally

sentenced to five years E imprisonment. And on heels, to such sentence, was the

usual statutory compensation order, that, the said appellant shall compensate, his

employer TARECU, the value of the unrecovered typewriter, and louver glasses.

The appellant aggrieved, is appealing against conviction, contending in the main, - 1 -

F that he denied and still denies committing the charged offence, - 2 - that he was

arrested and tortured by the infamous Sungusungu, and that any confession before

whom, being inadmissible in law, the trial Magistrate seriously erred in law, avoiding

being guided by G the provision of section 27 of the Evidence act 1967 hereafter to

be called the Act to convict him, and - 3 - that the confession before D/Cpl. Benjamin

was inadmissible, and that consequently and finally, as a result and left without such

inadmissible evidence, the prosections case, is yawningly, wanting, and lacking. The

appellant therefore demands H his liberty now.

I can and I am assuring the appellant, that liberty will be his, subject to his innocence

remaining undisplayed by guilt. The facts that contributed to the appellant being

where he is, are as follows. The appellant was at the material time, employed as a

watchman by Tabora Region Co-operative Union, and then, assigned his duties at the

Tabora I Branch. It is defying challenge that, on the 1/5/90, it

1992 TLR p229

KATITI J

was discovered that, eighteen louver glasses had been extracted from the windows, A

and the typewriter stolen, all valued at Shillings 67,200/=.

Obviously and invariably the question was, - who was the culprit. It is fashionable,

these days of our time to resort, to the obviously officious Sungusungu for assistance,

and B as a result, seventeen louvre glasses were recovered, three from PW 3 Wilbert

R. Msisi, four from PW 2 Wilberd Mzawa, some from one Pendeza, and some were

from yet another person, who did not give evidence. It is a finding of fact, that

seventeen louvre glasses Exh. P.1, were recovered though the typewriter is still

without a trace, C to date. It is too, a good unchallengeable finding of fact, that PW.2

Wilberd Mzawa, PW 3 Wilbert Msisi and PW.4 Joseph John Manji, claimed to have

bought the same from one Ramadhan, whose definition, whereabouts, or other

aliases, are one record unknown. However through Sungusungu's interrogation,

witnessed by PW 4 Musa D Ramadhan, a sungusungu enthusiast, the appellant

confessed to them, to have stolen the louvre glasses, but not the typewriter. And

PW.6 S. 7909 D/Cpl. Benjamin, tendering a cautioned statement as Exh. P.2

testimonially told the court that the appellant confessed, in his cautioned statement,

to have stolen the louvre glasses. The appellant in his E defence, still protested his

innocence, denying that charge, disowning all, that the prosecution said. The trial

Magistrate found the evidence establishing the offence beyond reasonable doubt, and

convicted.

Mr. Boas, the learned State Attorney, appearing for the Republic supported the F

conviction. the case as I see it, stands, or falls, on the only one issue of admissibility of

confessions, allegedly made by the appellant, first to sungusungu, and subsequently to

PW. 6 C. 9709 D/Cpl. Benjamin, consecutively, to whom, the appellant confessed, to

have stolen the louvre glasses. I notice, the evidence was not digested and dissected,

G by the trial court, bearing in mind the provisions of section 27 of the Act, on the

admissibility of confessions. In fact, the appellant, is attacking the trial court, for its

failure to pay attention, to the provisions of section 27 of the Act, alleging as usual

than not, than in many cases of this kind, that, the sungusungu extracted the

confession H from him, by and with violence.

The evidence digested, to the most desirable extent, it will and has to be discovered,

that in this case, somewhere between the theft, the appellants confession, and the

recovery of the louvre glasses, is one Ramadhan, who as above said, sold the said I

louvre

1992 TLR p230

KATITI J

glasses. As this Ramadhan, is neither an accused, nor a prosecution witness, but for A

the appellants confession, we would for sure, have never known, how the louvre

glasses left their places of fixture. But it is also in my view true, that the appellant

confessed to Sungusungu on 5/5/1990, as witnessed by PW 4 Musa Ramadhan, to have

on the 1/5/1990, stolen the said glasses, and in a cautioned statement to PW 6 D/Cpl.

B Benjamin, on 10/5/1990 to have stolen the same.

The appellant, as above aforementioned challenges, that the confession by him to

sungusungu, was inadmissible, as he was tortured by them, to extract the same from

C him. This being the appellant's contention, it doesn't seem to me, that it was a

misconception. For first, while it is trite law, that the condition precedent for the

admissibility of the confession, is its voluntariness, the said confession is not

automatically inadmissible, simply because it resulted from threats, or promise; it is D

inadmissible, only if the inducement or threat, was of such a nature as was likely to

cause an untrue admission of guilt, see section 29 of the Act: Second, it is a view I

humbly hold, again, that a confession is not just rejectable, because threats have been

made. Not at all in my view. This is because, it is for the prosecution to prove E

voluntariness of the confession, and once a threat has been shown to have been made,

the Court may presume, that it induced the confession, until the prosecution proves,

that there was no causal connection, - see Smith (1959) 2 QB 35. [1959] 2 ALL. E.R.

193. So that where you have threats, and a confession far apart, without causal F

connection, and no chance of such threats inducing confession, such confession

should be taken to be free of inducement voluntary, and admissible. In this case, the

appellant confessed before Sungusungu. Although Sungusungu are known for

torturing suspects, it is perhaps not permissible to vouch, that they torture every

suspect nor is G it justifiable, to raise such conduct into a rebuttable presumption;

that they should be presumed to have tortured the suspect, till the contrary is proved.

In any case, if one is, or was tortured, the court cannot read the same on the face, the

victim has to tell his experience. In this case, through out the prosecutions and the

defence case, at no H time did the appellant, either, personally in his defence, or

through cross examination, if witnesses show he was tortured at all. It is curious, and

easily smelling afterthought, that the same should be raised by him, in his memo of

appeal, and I am not inclined in any way to take him seriously. I

1992 TLR p231

KATITI J

But too, the appellant confessed, before D/Cpl. Benjamin on the 10/5/1990, in the A

cautioned statement, inter alia, thus:

Mwezi wa April, 1900 siku ambayo siikumbuki niliamua kuiba (Rovers)

kutoka kwenye nyumba ofisi za hapo TARECU Branch. Sikumbuki idadi ya vioo

nilivyoiba. Sababu B zilizonifanya niibe rouvers hizo ni baada ya kuuguliwa na mke

wangu Janeth d/o William ... Nilipoona hakuna uwezekano wa kuapata fedha za

kumuuguza mke wangu, niliona njia nyepesi ni kuchukua louvers hizo nikauze ili

nipate fedha za kumpatia matibabu mke wangu. Rouvers hizo nilizichukua kwenye

majira ya saa 20.00 za mchana. Nakumbuka C siku hiyo ilikuwa siku ya sikukuu,

kama sikukosea nadhani ilikuwa May Mosi, Nilizichukua nilimpelekea Ndugu James,

ambaye alikuwa anakunywa kahawa Mtaa wa Usagara. D

In my view, so much and extent of the above statement, from the cautioned

statement Exh. P.2, shows how the appellant thought, concieved the plan to steal, and

how he executed and consulated the same. In his own defence, the appellant denied

E knowledge of what PW.6 D/Cpl. Benjamin said, and tendered. But in his memo of

appeal, the same appellant castigates the trial Magistrate, alleging, that the evidence of

PW.6, was relied upon without regard, as to his credibility. First to put the cart

behind the horse, the excerpt above, taken from the tendered cautioned statement

Exh. P.2, F constitutes a confession, it was made before the Police Officer, of the

rank of Corporal, and as before and now, as inducements are not alleged, not even by

the appellant, to have been committed by him, (PW.6), the admissibility of the said

confession, meets no legal hurdle at all, on its way into the judicial records, and it was

rightly admitted G under section 27 of the Act. And if PW.6, recorded correctly and

right, what the appellant said, and acknowledged it by his signature, and only

equivocally impugns it now, I don't see how, doubts about PW. 6 credibility came

about. He recorded what he was told by the appellant, after the administration of the

caution. H

It falls and remains to be concluded, that the appellant twice, and at intervals

confessed, to have stolen the louvre glasses, to Sungusungu and on the 5/5/1990

repeated the same, to PW 6. As I did find the first confession was on evidence not

induced by threats, as the second confession, was also voluntary. But if I may add,

though not I duty bound, and for sake of argument, that even if, the

1992 TLR p232

KATITI J

first confession, had been induced, and therefore rendered inadmissible, the second

A confession would only be inadmissible, if the threats, or undue influence, under

which the first confession was made, was still persistent, when the second confession

was made. In other words, even if the first confession were inadmissible for reason of

torture - B involuntariness, the second cautioned confession would be admissible, as

by the time was made, the effect of the original torture, had been dissipated. Thus it is

a principle of evidence, that where the first confession is by reason, if threat,

involuntarily made, and is therefore inadmissible, a subsequent voluntary confession

by the same maker, is C admissible, if the effect of the original torture, or threat, has

before such subsequent confession, been dissipated and no longer the motive force

behind such subsequent confession - see R. v D.K. Williams (1968)52 Cr. App. R. 439.

In this case, even if Sungusungu, were to demonstrate their torturing true colours, D

and rendered the first confession inadmissible, which on evidence they did not any

way, and the confession was admissible, the second voluntary confession would be

admissible, as on 10/5/1990, when the second confession was made, five days later,

such torture even if perpetrated, on 5/10/1990 would not still be influential events. E

But, to all intents and purposes, I believe, the evidence vindicating, no torture/ undue

influence, has been shown to have been exercised, and the belated complaint by the

appellant, is only a product of afterthought, some kind of wisdom after the event, that

hardly has any retrospective efficacious effect. And same and sound as the appellant

F was, and is, with the opportunity any way, he could not have confessed giving the

details of theft, unless he actually stole. I like the trial court, I am satisfied beyond

reasonable doubt, that the appellant committed the charged offence. He was rightly

convicted, and as the sentence is only the statutory minimum for the offence,

interference with the G same, is not legally attractable. The appeal is therefore,

totally dismissed.

H Appeal dismissed.

1992 TLR p233

A