THE DIRECTOR OF PUBLIC PROSECUTIONS v NURU MOHAMED GULAMRASUL 1988 TLR 82 (CA)

 

THE DIRECTOR OF PUBLIC PROSECUTIONS v NURU MOHAMED GULAMRASUL 1988 TLR 82 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Omar JJA

23rd June, 1988 C

Flynote

Evidence - Confession - To a Police officer and another civilian during search and

interrogation - Whether repudiation can carry weight - Fear of torture and force. D

Evidence - Whether the two lay members erred in law by holding the evidence of

D.W.3 and D.W.4 introduced an element of doubt.

-Headnote

On the basis of information received, Police went to a house in Regent Estate Dar es

E Salaam where a motor lorry was parked. The lorry was in the custody of the

respondent despite the fact that the lorry was in the name of respondent's father. The

respondent was present while the police were conducting search in a compartment of

the parked F lorry where elephant tusks were hidden. This compartment was broken

open to get the tusks in presence of witnesses which included both police officers and

civilians. The respondent confessed that the elephant tusks were his and that he had

collected them G from Mikumi. This statement was made in the presence of four

reliable witnesses. When called upon to give their opinions both lay members of the

court were of the view that the respondent was not guilty as charged because the

evidence given by defence witnesses did cast some doubt. Although the presiding

judge dissented from that opinion H the respondent had to be acquitted. Hence this

appeal by the Republic.

Held: (i) The admission made by the respondent and heard by reliable witnesses was

sufficient by itself to have founded a conviction of unlawful possession of

Government Trophies. I

Case Information

Appeal allowed.

1988 TLR p83

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

No case referred to: A

[zJDz]Judgment

Mustafa, Makame and Omar, JJ.A.: One Nuru Mohamedi Gulamrasul and another

person were charged in the High Court in Dar es Salaam sitting as an Economic

Crimes Court in Economic Crimes Case No. 1 of 1986. They were both charged with

being in B unlawful possession of Government trophies (to wit 133 elephant tusks)

contrary to section 67 (b) of the First Schedule to the Economic and Organized Crime

Control Act, and section 59 of the Economic and Organized Crime Control Act, No.

13 of 1984.

The other person with Nuru was acquitted after the Prosecution evidence had

finished, C the court holding that there was no case for him to answer. The case

against Nuru Gulamrasul proceeded to its conclusion. In the result, the two lay

members of the Court were of the view that Nuru Gulamrasul was not guilty, but the

presiding trial judge dissented from that opinion. D

From that acquittal the Republic is appealing to this Court. There was some trouble

concerning service of the appeal on Nuru Mohamedi Gulamrasul, hereafter called the

respondent. He apparently could not be found in the Republic of Tanzania. On

application by the Republic this Court, on 12.2.88 made an order for substituted

service E by publication in the newspapers on certain conditions. These conditions

have now been carried out and this morning we allowed State Attorney for the

Republic to open his appeal before us in the absence of the respondent as we are

satisfied that substituted service has been effected in the circumstances. We believe

the position is analogous to F that which would obtain in a situation provided for in

Rule 73(2) and (3) of the Court of Appeal Rules.

Briefly the facts as adduced in evidence at the trial were as follows. On information

G received a police party went to a house in Regent Estate, Dar es Salaam where a

motor lorry was parked. The lorry was in the custody and control of the respondent,

although the lorry was in the name of the respondent's father. The respondent was

present with the police party when the lorry was searched. In a well-hidden

compartment built into H the body of this lorry a number of elephant tusks were

discovered. The compartment had to be broken open to get at the tusks. In the

presence of a number of witnesses, both Police and civil the respondent stated that

the tusks were his as he had obtained or picked them up at Mikumi. That statement

was made in the course of police I investigation, before the respondent was charged

or arrested.

1988 TLR p84

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

After he was arrested the respondent made a cautioned statement to P.W.6, a Police

A inspector. In the statement the respondent revealed how he came to possess the

tusks.

At the trial, the respondent denied that he had ever admitted that the tusks were in

his possession. He called two witnesses, who alleged that they were part of a group of

B people who were arrested after the discovery of the tusks in the lorry and who

were present during the search. D.W.3 stated that the respondent said the tusks were

not his while D.W.4 stated that the respondent said he did not know anything about

the tusks. D.W.3 was respondent's fellow tribesman and D.W.4 his cousin. C

On the prosecution side, P.W.1 and P.W.2, both Police officers during the search

stated that when questioned, after the tusks were discovered the respondent told

them the tusks were his. P.W.3 a civilian neighbour and P.W.4 a C.C.M. Branch

Secretary of the D area, both heard the respondent so saying. This , as pointed out

earlier, was stated by the respondent before the respondent was charged or arrested.

This was during an investigation searching for trophies. We have no doubt that these

four prosecution witnesses were telling the truth, in fact their evidence stood clear

and unshaken in court. E This admission by the respondent, heard by four obviously

reliable witnesses, was sufficient by itself to have founded a conviction of unlawful

possession, unless the respondent had authority to possess.

Then there is the cautioned statement. This was taken by P.W.6 a Police officer who

F testified and produced the statement. He took all the proper precautions and took

down the statement made by the respondent. It was duly signed by the respondent.

No objection was made to the admissibility of the cautioned statement, and in fact

P.W.6 was not cross-examined as to the voluntariness or otherwise of the statement.

G

After the Prosecution case was closed, the respondent in his evidence, purported to

allege that the cautioned statement was taken from him by force or torture and was

not read over to him. He repudiated it. H

We do not think a repudiation in such circumstances can carry weight. If it was

alleged that P.W.6 had obtained the statement by torture, P.W.6 should have been

cross-examined on that when he was testifying, or an objection raised to the

admissibility of the statement. Nothing of the sort was done. The respondent was

legally represented. It seems to us that the so-called repudiation was an afterthought

and would not deserve I any serious consideration.

1988 TLR p85

In his judgment the presiding judge, more in sorrow than in anger, stated that the two

lay A members did not completely believe that the respondent made the

"confession" during the search and interrogation. The two lay members thought that

the evidence of D.W.3 and D.W.4 introduced an element of doubt. The two lay

members were of the view that the cautioned statement was obtained under torture.

B

With great respect to the lay members, in our view the evidence adduced by the

Republic against the respondent in this case is overwhelming. The respondent's

admission that he was the possessor of the tusks was satisfactorily proved; and so was

C the incriminatory cautioned statement. The respondent's defence that it must have

been his driver who had hidden the tusks in the lorry without his knowledge, in the

circumstances, was pure fantasy. Both D.W.3 and D.W.4 were biased in his favour,

being fellow-tribesman and a relative. D

Indeed we are of opinion that the finding of the two lay members that the respondent

was not guilty of the offence charged was a perverse finding in the circumstances. No

reasonable tribunal on a proper and objective view of the evidence could have arrived

at such a conclusion. E

We allow the appeal, set aside the judgment and order of acquittal of the High Court

sitting as an Economic Crimes Court, and substitute therefore a finding of guilty as

charged against the respondent.

We sentence the respondent to 10 years imprisonment. We order the forfeiture of the

F tusks (if not already forfeited) and of the lorry to the Republic.

Appeal allowed.

1988 TLR p85

G