C. 6237 P.C. EDWIN AND ANOTHER v REPUBLIC 1985 TLR 31 (HC)

C. 6237 P.C. EDWIN AND ANOTHER v REPUBLIC 1985 TLR 31 (HC)

Court High Court of Tanzania - Mtwara

Judge Mushi J

31 May 1982

CRIMINAL APPEALS 44 AND 45 OF 1981

Flynote

Evidence - Cross Examination - Accused gave an unsworn statement - Court

questioned and cross-examined him - Whether proper. E

Criminal Practice and Procedure - Evidence - Accused questioned and crossexamined

by court on his unsworn statement - Improper - Effect on the decision of

the court.

Minimum Sentences Act, 1972 - Value of stolen property said to be over Shs.5,000/= -

No evidence to establish such F value - Whether Minimum Sentences Act

applicable.

-Headnote

The two appellants were convicted by the trial court on a charge of stealing by

persons employed in the public service. During trial the appellants, Field Force Unit

policemen gave unsworn statements. Then the trial G magistrate questioned and

cross-examined them and in the process elicited evidence which otherwise would not

be before the court. They were sentenced to five years imprisonment because the

property was said to be worth over Shs.5,000/=. The appellants appealed against both

convictions and sentences. H

Held: (i) An accused who makes an unsworn statement may be asked questions by

the court in order to clarify any of the statements made by him; it is however quite

improper for him to be cross-examined not only by the prosecution but also by the

court; I

(ii) where cross-examination of an accused on his unsworn

1985 TLR p32

MUSHI J

statement has not occasioned a failure of justice the error becomes curable under

section 346 of the Criminal A Procedure Code;

(iii) in this case the cross-examination of the accused on their unsworn

statements went far beyond the permitted limits and would have occasioned a failure

of justice except for the fact that such evidence was not necessary for the

determination of the case; B

(iv) there was sufficient other evidence on which conviction could have been

based;

(v) since under the Minimum Sentences Act, 1972 the value of the property

stolen affects the sentence, it is important for the court to judiciously determine the

value of property in issue; C

(vi) in this case the estimated value is on the border line and under such

circumstances the appellants should have been given the benefit of doubt to the effect

that the value could in fact be less than Shs.5,000/=

Case Information

Order accordingly. D

Cases referred to:

1. R. v Pirmin Kunjanga (1935)2 E.A. C.A. 64

2. Maina Ngotho v R. [1960] E.A. 453 E

3. Leonard s/o Kaseko v R. [1968] H.C.D. n. 45

4. Samson Ndegeleki v R. [1972] H.C.D. n. 197

5. Dinkerrai Ramksishan Pandya v R. [1957] E.A. 336

6. Martha Michael Wejja v Hon. The Attorney General and Three Others

[1982] T.L.R. 35 F

7. Yuill v Yuill [1945] 1 All E.R. 183.

L.K.N. Kaduri, for the respondent.

Judgment

Mushi, J.: No. C6700 P.C. General Paul and No. C.6237 P.C. Edwin, who are

respectively G 2nd and 1st appellant, were charged of and convicted with the

offence of stealing by persons employed in Public service c/s 270 and 265 of the Penal

Code and were each sentenced to five years imprisonment. They are appealing

against such conviction and sentences. H

The two appellants were police officers and at the material time they were attached to

Field Force Unit at Songea and were assigned garage work where they worked as

mechanics. On the day in question PW1 - B.3261 CPL Maurus and PW2 - B.4053 PC

Constantini, who are also F.F.U. Policemen, were just in an I evening walk when at

about 8.00 p.m. they saw a bedford vehicle parked on the main road near the F.F.U.

campus. Soon P.C. Edwin - 1st appellant approached the parked

1985 TLR p33

MUSHI J

vehicle and spoke with the driver briefly and walked across the road to certain huts.

Immediately after that the A 2nd appellant, PC General came towards the vehicle

carrying something. PW1 and PW2 were suspicious about the thing which the 2nd

appellant was carrying. At that time the vehicle had been reversed and it was facing

B Songea Town. 2nd appellant was putting the long thing in the vehicle. PW1 and

PW2 approached the vehicle and enquired from 2nd appellant as to what he was

putting in the vehicle and he replied nothing. PW1 and PW2 recognized the thing

which was being loaded into the vehicle as a windscreen. When the 2nd appellant

was C further questioned he said that the windscreen belonged to the 1st appellant

PC Edwin and that he was helping him to sell and would share the proceeds. As the

conversation went on, the 1st appellant went nearer the scene and asked why he was

being mentioned. The matter was reported to the police and the screen was also taken

to the police. On the following morning, it was discovered that the screen had been

removed from an Isuzu vehicle D belonging to UMITA vehicle which had been

entrusted to F.F.U. at Songea and which was parked in the F.F.U. compound. There

was evidence which conclusively established that the windscreen had been removed

from the Isuzu vehicle parked at F.F.U.

1st appellant - Edwin denied the offence. He told the court that on the day in

question and at the material time he E had gone to buy soap in a shop across the

road. On his way back he saw a parked vehicle and near it he saw PW1 and PW2. As

he saw nothing to warrant his stay he went home. On the following morning he was

called to make a statement in connection with the windscreen. As the 1st appellant

made unsworn statement, the F prosecution could not examine him. The trial

magistrate however conducted an extensive cross-examination. I shall refer to this

aspect of evidence later in my judgment.

The 2nd appellant, PC General, made an unsworn statement in which he stated that

on the material date, he G found 1st appellant together with the driver of the motor

vehicle, PW5 Hassan Omari, talking. As he (2nd appellant) was passing he was

requested by 1st appellant to help to load something into the lorry. One of the items

loaded was a windscreen. As they were loading PW1 and PW2 went nearer the

vehicle. The 1st H appellant ran away. PW1 and PW2 then asked the 2nd appellant

about the windscreen which he said he had just helped to load it. The 2nd appellant

said that he was then ordered to take the windscreen to the police. The 1st appellant

later appeared but he was uncooperative. The 2nd appellant stated that he was

threatened by the I 1st appellant because he had mentioned him. As the 1st

appellant threatened to kill the 2nd appellant, he went to sleep at the Quarter Guard.

On this aspect, 2nd

1985 TLR p34

MUSHI J

appellant's statement is supported by the evidence of DW3 A.5967 Sgt. Alfred Banda

who told the Court that A the 2nd appellant went to complain to him that 1st

appellant had threatened to kill him because he had mentioned him in connection

with the theft of windscreen. DW.3 gave a bed to 2nd appellant who slept at the

place till B morning. There is also the evidence of DW.2 - Mwinyijuma Ramadhani.

This DW2 told the court that he had been at the 2nd appellant house till about 7.00

p.m. when he left with 2nd appellant for the purposes of going for a drink. On the

way they saw a bedford vehicle parked. The 1st appellant called the 2nd appellant to

the place C where the vehicle was parked. DW 2 went on his way and he never saw

2nd appellant again that night. Lastly I wish to refer to the evidence of PW5 Hassan

Omari. This PW5 was the driver of the vehicle in question. PW5 told the Court that

when he reached near F.F.U. his vehicle heated up and required some water. He D

reversed with the intention of going back to the town, but before he left, 2nd

appellant approached him with a request to help him carry a windscreen as he had

waited for transport without success. PW5 agreed and waited for 2nd appellant to

bring the windscreen. When the windscreen was brought, two people approached

the vehicle and questioned the 2nd appellant about the windscreen. PW5 left the

place but he denied to have seen1st E appellant at the scene, although 1st appellant

says he went to the scene.

In their memorandum of appeal, just like in their defence, each is alleging that the

other is the one who stole the windscreen. The question for determination before

this court as was in the lower court is whether the appellants F are jointly guilty as

charged or not. As for the 2nd appellant, he was caught loading the windscreen into

the lorry. There is evidence of PW1 and PW2 whose testimony was believed by the

trial court to the effect that 2nd appellant told them he was selling the windscreen on

behalf of 1st appellant and they would share the proceeds. G If the 2nd appellant

was given the windscreen by the 1st appellant as he claimed, both of them being

mechanics, the 2nd appellant should have known that the 1st appellant could not

own such an article. The 2nd appellant should have suspected the 1st appellant

particularly that the article was being loaded at night time. PW1 and PW2 did not

see any other load which was loaded into the vehicle as alleged by the 2nd appellant.

I H do not accept that the 2nd appellant could just be ordered by 1st appellant to

carry the windscreen at the time, when they just met accidentally as alleged by the

2nd appellant. The 2nd appellant carried the windscreen as he had an interest in the

matter. As for the 1st appellant, immediately after the 2nd appellant was confronted

by the I PW1 and PW2 he was mentioned to be connected with the windscreen.

PW1 and PW2 had told the court that when the vehicle of PW5 parked, the 1st

appellant approached the driver

1985 TLR p35

MUSHI J

and asked him "Vipi?" The driver PW5 denied to have met the 1st appellant at the

scene that night and A obviously to have talked to him. But the 1st appellant in his

memorandum of appeal, admits to have asked PW5 "Vipi?" To quote the appellant's

ground No. 3 he says:

3. That: The evidence of PW1 No. B.3261 Cpl. Maurus is poor evidence in

this case. Because he heard a word which B was sometimes wants to help a person

especially when you put mind that it was night time then, I was a policeman. I was

supposed to ask the owner of the alleged vehicle the word "Vipi?" which means what

was "wrong". The driver of the alleged vehicle replied that "there was nothing

wrong." C

This confirms the evidence of PW1 and PW2 and discredits his own testimony in the

trial court. It also confirms that PW5 Hassan Omari was telling lies when he said he

never saw the 1st appellant at the scene. Of course the D utterance of vipi to PW5 is

capable of innocent interpretation as he wants to make this court believe. However

what followed immediately after such utterance and the inconsistencies that have

emerged, leaves one with no doubt that the statement was made with an

understanding. Otherwise if it was not so why should PW5 E reply that there was

nothing wrong when he infact said in his evidence that he had stopped because his

vehicle had heated up. Again 1st appellant said that he returned at the scene and

found fellow policemen but left for home. He mentioned nothing with regard to

windscreen. There was further evidence that 2nd appellant went to F spend a night

at Quarter Guard because of threats from 1st appellant because he had been named to

have been connected with the theft of windscreen. Why all this dramatic reaction to

the extent of threatening to commit murder? There can be no doubts that the 1st

appellant was displeased for being disclosed that he was a party to the theft. G

Earlier on in this judgment I stated that I would refer to the evidence of the

appellants which was extracted from them by the trial magistrate in his extensive

cross-examination after the appellants had made unsworn statements H from the

dock. Under the circumstances the prosecution could not cross-examine the

appellants on what they said but the learned trial magistrate conducted an extensive

cross-examination on both appellants and extracted some evidence and forced them

to produce statements which they had made to the police. The learned trial

magistrate made use of the extracted evidence and documents in arriving at the

decision in this appeal. The trial I magistrate's conduct went far beyond accepted

limits provided by law. As the appellants were not represented by an advocate,

1985 TLR p36

MUSHI J

I requested the State Attorney to address me on the issue which I must say, new as he

is, Mr. Kaduri has A commendably done the work. The law and practice on this

issue is in my opinion quite settled. Section 206 of Criminal Procedure Code is all too

familiar to many of us. Sub-section - (1) states as follows and I quote: B

206 - (1) At the close of the evidence in support of the charge, if it appears to

the court that a case is made out against the accused person sufficient to require him

to make a defence either in relation to the offence with which he is charged or in C

relation to any other offence of which, under the provisions of section 181 to 189

(inclusive) of this Code, he is liable to be convicted, the court shall again explain the

substance of the charge to the accused and shall inform him that he has the right to

give evidence on oath from the witness box and that, if he does so, he will be liable to

cross-examination, or to D make statement not on oath from the dock, and shall ask

him whether he has any witnesses to examine or other evidence to adduce in his

defence, and the court shall then hear the accused and his witnesses and other

evidence if any.

The most relevant portion for this appeal in the above quoted section is of course this:

E

...and shall inform him that he has the right to give evidence on oath from the

witness box and that, if he does so, he will F be liable to cross-examination, or to

make a statement not on oath from the dock,...

Reading the section as it is, it does not appear to me to present any linguistic

ambiguity of any kind. In its plain G English language meaning, it means that an

accused has a choice either to give evidence from the witness box on oath or to make

a statement from the dock without oath. If the accused gives evidence from the

witness box on oath, he shall be liable to cross-examination. On the other hand, if

the accused makes a statement without oath it H clearly means he shall not be liable

to cross-examination and in my considered view, it is not only cross-examination by

the prosecution but also by the court and assessors as well. This does not mean that

the trial magistrate can write any unintelligible or meaningless statements from

accused simply because the statement is not made on oath; the trial magistrate may

seek clarification on the statement to make it understood. Seeking I clarification is

not cross-examination. The effect and extent of putting questions to an accused who

gives an unsworn

1985 TLR p37

MUSHI J

statement has been discussed in many cases. The earliest case in which it was

discussed was R. v Pirmin A Kunjanga (1935) 2. E.A. C.A.64. In that case, the

appellant was charged with murder. The appellant had made a statement in the lower

court but that statement was not put in at the trial. The trial magistrate however

interrogated that accused on the statement. On appeal the appellate court held: B

No question should be asked of an accused person who has not given evidence

on oath unless for the purposes of explaining or clarifying something obscure or

ambiguous in his unsworn statement. A discrepancy between two statements is not

of itself obscure or ambiguous. C

Twenty five years later, the same court of Appeal for East Africa, as it then existed

reiterated the finding in R. v Primin Kunjanga and went a little further by stating the

consequence if the questioning caused prejudice to the D accused. This was in the

case of Maina Notho v R. [1960] E.A. 453. In that case, the appellant made unsworn

statement from the dock but the trial judge put some questions to him. The court

discussing R. v Pirmin Kunjanga had this to say: E

With respect we entirely agree with the limitations there indicated which

ought to be observed by a trial Judge in asking questions of a prisoner who has elected

to make an unsworn statement. If, however, a trial Judge does exceed the limits F

there indicated, the matter, in our view, amounts at most to no more than an

irregularity which is curable under s.381 of the Criminal Procedure Code unless it

"has in fact occasioned a failure of justice."

This was a Kenya case but the provision is similar to our section 206 of Criminal

Procedure Code. Back home, G in recent years, this court guided by the decision of

the Superior Court as sufficiently shown above, has made similar comments regarding

the questioning of an accused who makes an unsworn statement. In the case of

Leonard s/o Kaseko v R. [1968] H.C.D. 45 the appellant after making an unsworn

statement was questioned H by the magistrate and cross-examined by the

prosecution. The Honourable Mr. Justice Cross, as he then was, held:

(1) An Accused who makes an unsworn statement may be asked questions

by the Court in order to clarify any of the I statements made by him. It is quite

improper for him to be cross-examined by the prosecution.

1985 TLR p38

MUSHI J

(2) In the circumstances of this, case, the error in permitting crossexamination

did not prejudice accused, and it is A curable under section 346 of

Criminal Procedure Code.

To sum it up, the position is, and if I may be excused to use the apt words of Jonathan,

Ag. J. as then was, in the B case of Samson Ndegeleki v R. [1972] H.C.D. 197 in

which he said:

.... The court then seems to have gone completely out of its way and crossexamined

the appellant. The learned resident C magistrate must have overlooked

the provisions of S.206 which make it clear that, in the event of an accused person

making an unsworn statement he is not liable to cross-examination. That means he is

not liable to cross-examination by the prosecution and the court (including assessors)

alike. Though occasions rarely arise, or course, there is nothing D improper for a

court to put in a brief question to an accused person when making his statement, if to

do so would give sense to what is otherwise incomprehensible, which indulgence, in

my view, is desirable and certainly in the interests of E the accused and justice in

that it affords him assistance to communicate reasonably intelligibly. Here this was

not the case, for the court asked questions which were not calculated merely to

clarify what was otherwise unintelligible. Though the procedure adopted here was

unlawful, I am satisfied that it did not cause a failure of justice and is a curable

irregularity. ... F

Turning to the appeal before me, the position is very different from the cases I have

discussed above. Both appellants gave unsworn statement but after that the learned

trial magistrate not only did he put questions to the G appellants, but carried out

extensive cross-examination and made them produce statement made at the police.

To complete the picture I think it appropriate to quote extensively the relevant

portions of the evidence from the proceedings. I start with P.C. Edwin who was the

1st accused at the trial. After this appellant had made his unsworn statement, the

court cross-examined him as follows: H

XXD by the court: (Using statement of the accused on getting it at request

from P.P.) If I am shown my statement I can identify it. The recording officer is Sgt.

Louo. The statement was read over to me by the recording officer. I signed the

statement to show that what was recorded was correct as I had said it. I did not know

I

1985 TLR p39

MUSHI J

that the statement would be used in evidence. (Shown statement and he

admits to have made it). A

I tender my statement as exhibit X. I did not know the 3 others out of the 5

that I suspected. I identified the vehicle as that of SISI KWA SISI. I uttered the

words JE, SISI KWA SISI VIPI? to PW5. The denial by PW5 that I ever talked to him

is lies. It B is true that PW1 heard by discussion with PW5. I don't know the reason

why PW5 had denied ever talking to me. I found the vehicle facing Tunduru

direction but it was later found to be facing the town. I was telling lies when I said

that after identifying PW1 and PW2 I left and then went to bed. It is true that the

2nd accused named me in connection with C theft. I was carrying out investigations

about my co-accused so that he could be arrested. I had grudge with my co-accused

and our bosses know about.

My witness will come to tell the court that when co-accused was being

arrested I was not there. D

And similarly with P.C. General:

XXD by the Court: I remember to have made my statement at the police

station. I can identify my statement. I request to E tender my statement Exh. Y.

Before we made our statement we were threatened with being put in the lock up.

This is a case resulting from being threatened and implication. I know that the police

force is where so as to be protective and fair F to the people and properties (court

reads from words "hapo nilimwacha ...(to)... ilikuwa mali gani". Those words are not

mine. There are those of of the R/O Sgt. Anatoli. I did not mention the load tied in

sacks due to duress and threat (court reads "Baada ya kukiteremsha... (to....

kumpelekea mjini"). Those are words which I made to the recording officer. G Exh.

A might be government property. I will call 2 witnesses. The first one was together

with me on the day of incident. He was together with me on that day. The second

witness is Willy. He is just like the first one, Cpl. Banda who was H guard

commander on that day. He is going to tell the court about how 1st accused

threatened me such that I decided to go and sleep at the quarter guard.

In his judgment the learned trial magistrate made use of the evidence extracted by

cross-examination and to I illustrate my statement, on page 3 of the judgment the

learned trial magistrate wrote:

1985 TLR p40

I had opportunity to cross-examine the first accused. His statement to the

police has been produced by the first accused A and it is marked Exh. X. The first

accused has admitted talking to PW5 the words "JE, SISI KWA SISI VIPI? and that

the denial by PW5 that they never met and talked on the day of incident are lies.

The first accused generally admits the B contents of Exh. X as those he made to the

police.

Again at page 4 it is written:

In brief the totality of the defence is that each of the accused person has done

his best, not only from his statement Exh. X C and Y but also in their defence, to

shift blame from himself by implicating his co-accused.

And further down on the same page 4 the judgment stated: D

I have noticed that in the statements made to the police Exhs. X and Y that the

accused persons have departed from them E in their defence. That is not without

reasons except for the second accused because they were caught on the spot. There

has not been advanced any reason by the 1st accused as to why he remained near the

tea huts until he got arrested.

I have carefully considered the effect of questions put to the appellants and crossexamination

thereto. I am of F the settled view that such conduct went far beyond

the permitted limits; and having regard to the fact that the learned trial magistrate

partly relied on the evidence extracted under the above circumstances in the

assessment of the evidence and partly relied on it in arriving at the decision in this

case, I am further satisfied that such G conduct prejudiced the appellant's trial and

would have occasioned a failure of justice except for the fact that such evidence was

not necessary for the determination of this case. There was sufficient other evidence

on which conviction could have been based.

This court being the first appellate court, is duty bound to re-evaluate the evidence

which was before the trial H court and draw its own inferences and conclusions,

where the circumstances demand as in this case, as would have been done by the trial

court had it properly directed its mind to the evidence. For this proposition of law I I

am guided by the decision in Dinkerrai Ramksishan Pandya v R. [1957] E.A. 336.

This was a decision of the former Court of appeal for East Africa which is still sound.

The same principle has been restated recently by Tanzania Court J

1985 TLR p41

MUSHI J

of Appeal in the case of Martha Michael Wejja v Hon. the Attorney General and

Three Others, which is A Court of Appeal Civil Case No. 3 of 1982 (unreported) in

which it quoted with approval the same principle in the case of Yuill v Yuill [1945] 1

ALL. E.R. 183. Clearly in this case the learned trial magistrate opted a wrong

approach in evaluating the evidence. As abundantly demonstrated above, I have

carefully carried out the duty of B this court and have scrutinised, analysed and

evaluated the evidence before the trial court completely excluding and ignoring the

evidence obtained by trial magistrate on cross-examination on the appellant and come

to the conclusion that the rest of the evidence as there was in this case left no doubts

whatsoever as to the guilt of the C appellants. The appeals against convictions are

thus dismissed.

The appellants were sentenced to five years' imprisonment because the property

stolen was said to be worth over Shs.5,000/=. Under the Minimum Sentences Act, the

value of the property stolen affects the sentence. It is D therefore important for the

court to judiciously determine the value of property in issue. Where exact value can

be established this should be done. Where only approximate value is given the basis

of such approximation must be given. In this case it is stated in the charge sheet that

the windscreen was worth Shs.5,000/=. One witness E during the trial stated that

the value was between Shs.5,000/= and 6,000/= but the record is silent as regards the

basis of the witness's opinion of the value of the windscreen. The court accepted such

assessment without analysis and scrutiny. A windscreen of an Isuzu, as was in this

case, is an item whose exact price can be established without difficulty and the courts

should not allow prosecution laxity to the detriment of an accused. F Even, then, in

this case, the estimated value is on the border line and under such circumstances, the

appellants should have been given the benefit of the doubt to the effect that the value

could infact be less than Shs.5,000/=. G The sentence of five years is reduced to that

of three years.

Order accordingly.

1985 TLR p44

A