MATHEI FIDOLINE HAULE v REPUBLIC 1992 TLR 148 (CA)

 

MATHEI FIDOLINE HAULE v REPUBLIC 1992 TLR 148 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Kisanga JJA, Omar JJA

G

17 June, 1992

Flynote

Evidence - Confession - Cautioned statement of a person who is alive and available H

admitted under section 34 Evidence Act - Whether proper.

Evidence - Confession - Murder - Admission by appellant that he had assaulted his I

mother - Whether confession of murder.

1992 TLR p149

-Headnote

The appellant assaulted his mother whom he believed to be a witch. In convicting the

A appellant the trial judge relied on two pieces of evidence. The first was a statement

the appellant made to his village chairperson that he had assaulted his mother. The

second was a cautioned statement alleged to have been made by the appellant before a

police officer who at the time of the trial was reported dead. The trial judge treated

both B pieces of evidence as confession.

Held: (i) The mere admission by the appellant that he had assaulted his mother could

not really be taken to amount to a confession to the offence of murder with all its

essential ingredients, especially as at the time the appellant was making the admission

C the victim was still alive and receiving treatment at the hospital;

(ii) section 34 of the Evidence Act was inapplicable to the facts and

circumstances of this case, and consequently the learned trial judge wrongly admitted

the alleged cautioned statement of the appellant in evidence. D

Case Information

Appeal allowed as limited.

Mbuya, for the appellant E

Senguji, for the respondent

[zJDz]Judgment

Kisanga, Makame and Omar, JJ.A.: The appellant was charged with and convicted of

murder contrary to section 196 of the Penal Code and sentenced to death by the High

Court (Kazimoto, J.) sitting at Songea. He is now appealing against both F conviction

and sentence.

Briefly, the facts of the case were as follows: The appellant is the son of the deceased

woman. The two had been in some misunderstanding apparently arising from the

appellant's belief that the deceased had, by witchcraft, caused the disappearance and

G subsequent death of his child. The case for the prosecution was that acting on such

suspicions the appellant set out to the home of the deceased on the material night

and, on finding her, struck her with a stick on the head. Later the deceased died in

hospital H following the head injury thus inflicted.

In his defence at the trial the appellant, denied assaulting the deceased and put up an

alibi.

In convicting the appellant, the trial judge relied on two pieces of evidence: One is

that which he treated as a confession made by the appellant to his village chairman or

I chairperson Cotride Msangu

1992 TLR p150

KISANGA JJA, MAKAME JJA, OMAR JJA

(P.W.1). The other pieces is a cautioned statement alleged to have been made by the

A appellant to a police officer who at the time of the trial was reported dead, and in

which the trial judge also took the view that the appellant had confessed to the

offence charged.

Mr. Mbuya learned advocate who argued the appeal before us submitted that the B

alleged cautioned statement of the appellant was wrongly admitted in evidence.

Indeed the defence had objected to its admissibility at the trial, but the objection was

overruled and the court proceeded to admit it under section 34 of the Evidence Act

which may be invoked where it is sought to put in evidence the statement of a

witness who died before he could testify orally. But the cautioned statement in this

case is attributable to the C appellant who is both alive and available. It is not a

cautioned statement of the police officer who allegedly recorded it from the appellant

and who is now reported dead. As such, Mr. Mbuya contended, the provisions of

section 34 of the Evidence Act could D not be prayed in aid here.

Mr. Senguji, learned State Attorney for the respondent Republic at first took the view

that the cautioned statement was rightly admitted in evidence, but upon reflection he

conceded that it was not. We are in entire agreement with counsel for both sides. We

E are satisfied that for the reasons set out hereinbefore section 34 of the Evidence Act

was inapplicable to the facts and circumstances of this case, and consequently the

learned trial judge wrongly admitted the alleged cautioned statement of the appellant

in evidence. F

That leaves the alleged confession to P.W.1 as the only evidence implicating the

appellant with the offence charged. P.W.1 testified that she was the village chairman

or chairperson of her village. At about 10 O'Clock in the night the appellant called on

her and stated that he had a big problem, namely, that he had assaulted his mother

and G that he was now asking P.W.1 to go to the victim and plead for forgiveness for

him. Whereupon P.W.1 advised the appellant to remain at her house for the night, as

it was already late, and promised to take up the matter the following morning. On the

H following morning she handed over the appellant to the police for appropriate

action.

As stated before, the appellant in his defence at the trial vehemently denied assaulting

his mother and equally denied to have told P.W.1 what he is alleged to have said to

her. However, the trial court believed P.W.1 and rejected the appellant's denial and

we I

1992 TLR p151

KISANGA JJA, MAKAME JJA, OMAR JJA

could find no fault with that. The assault on the deceased was clearly unlawful. A

The question which arises is whether what the appellant said to P.W.1 amounted to a

confession to the offence of murder. A confession within the context of criminal law

is one which admits in terms the offence charged. It is one which admits all the

essential B elements or ingredients of the offence. An admission of one or only some

of the ingredients of the offence is not sufficient. In the instant case all that the

appellant said to P.W.1 was that he had assaulted his mother. Admittedly assault, or

to be more precise, an unlawful assault is an essential ingredient of the offence of

murder with which the C appellant was charged. But it is by no means the only one.

There are other essential ingredients such as the intention on the part of the prisoner

to kill or cause grievous bodily harm, and the fact that the victim in question is in fact

dead. Thus the mere admission by the appellant that he had assaulted his mother

could not really be taken D to amount to a confession to the offence of murder with

all its essential ingredients, especially as at the time the appellant was making the

admission the victim was still alive and receiving treatment at the hospital.

On the other had it is plain from the evidence that following the appellant's assault on

E the deceased the deceased was taken to hospital for treatment where she died about

six days later, and there is no evidence of any intervening act of assault by anyone

else. The post-mortem examination report shows that the deceased had sustained a

compressed fructure of the skull which caused brain injury and intracranial bleeding

leading to the F death. The only conclusion to be drawn is that the deceased died

from injuries following the assault, inflicted on her by the appellant.

But we could find no clear evidence of malice aforethought on the part of the

appellant. It is not clear what intention the appellant had when he assaulted the

deceased. It is G not clear whether he wanted to kill her or cause her grievous bodily

harm or whether he simply wanted to punish her out of anger for thinking that she

was the cause of his child's disappearance and its subsequent death. Nor is there any

evidence as to what weapon, if any was used in assaulting the deceased, nor the extent

of the depressed H fructure of the skull. In the circumstances we feel inclined to give

the benefit of doubt to the appellant. Consequently we find the charge of murder not

proved beyond reasonable doubt. However for the reasons already stated we find the

appellant guilty of the lesser offence of manslaughter and convict him accordingly. I

1992 TLR p152

As regards sentence, we must state at once that this was a bad case of manslaughter A

bordering on murder itself. This fact must be reflected in the punishment to be

awarded. The appellant is accordingly sentenced to ten (10) years' imprisonment. The

appellant's appeal is therefore allowed to this limited extent.

B Appeal allowed in part.

1992 TLR p152

C