PIA JOSEPH v REPUBLIC 1984 TLR 161 (HC)

PIA JOSEPH v REPUBLIC 1984 TLR 161 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

B CRIMINAL APPEAL 72 OF 1983

Flynote

Criminal Practice and Procedure - Alibi - Failure of trial court to consider accused's

alibi - Consequences.

Criminal Practice and Procedure - Credibility of witnesses - Circumstances that may

justify an appellate C court's interference with trial court's finding on credibility.

-Headnote

The appellant was convicted of unlawful wounding on the basis of evidence of

witnesses who purported to have identified her in darkness. Appellant claimed that

she had been at another place D at the material time. There were some material

inconsistencies in the statements of the prosecution witnesses as regards the

identification of the accused.

On appeal the issue was whether the appellate court could interfere with the findings

of the trial E magistrate on credibility of witnesses.

Held: (i) An appellate court will not lightly interfere in the trial court's finding on

credibility unless the evidence reveals fundamental factors of a vitiating nature to

which the trial court did not address F itself or address itself properly;

(ii) it is the duty of the court to direct its mind properly to any alibi set up by a

prisoner;

(iii) it is a rule of practice, not of law, that corroboration is required of the

evidence of a witness G of identification of the accused made under unfavourable

conditions.

(iv) a previous threat to commit a particular offence does not constitute

conclusive proof of the commission of such offence, but it affords corroboration to

other credible evidence.

Case Information

H Appeal allowed.

Cases referred to:

1. Glannibanta [1876] 1 P.D. 283.

2. Pandya v R. [1957] E.A. 336.

I 3. Coghlan v Cumberland [1898] 1 Ch. 704.

4. Abdallah Wendo v R. [1953] 20 E.A.C.A. 166.

1984 TLR p162

LUGAKINGIRA J

5. Waihi v Uganda [1968] E.A. 278. A

6. Mwakawanga v R. [1963] E.A.6.

7. Sekitoleko v Uganda [1967] E.A. 531

8. Manda v.R. [1965] E.A. 193.

Mwambe for the Republic B

[zJDz]Judgment

Lugakingira, J. Around 11 p.m. on 31.3.1983 the complainant Abdallah Omari Fonga,

a resident of Kondoa township, was attacked and injured with a sharp instrument. It

occurred as he opened the rear door of his bar on his way out and he claimed to have

identified the appellant Pia Joseph as his C assailant with the aid of moonlight. Four

days later he reported the appellant to the police whereupon she was arrested and

charged with causing grievous harm c/s. 225 of the Penal Code. At the conclusion of

the trial she was convicted of unlawful wounding c/s. 228 (1), the trial magistrate D

taking a light view of the injury, and was sentenced to two years' imprisonment

subject to confirmation. She appealed against the conviction and sentence. At the

hearing of the appeal learned counsel for the Republic Mr. Mwamba declined to

support the conviction. I agreed and allowed the appeal, setting aside the conviction

and sentence, and ordered the appellant's release E from custody. I did so for the

reasons set out in this judgment.

In view of what will transpire, it is necessary to examine the relationship between the

parties along with a summary of the contending evidence. The complainant and the

appellant were previous F lovers who had cohabited for a year. At the time of the

incident they were estranged, the complainant having become "fed up" with the

appellant, and a dispute was pending before the reconciliatory tribunal following a

report by the complainant. Earlier that morning they had met at a butchery and the

appellant had allegedly threatened the complainant stating: "You are accusing me G

before the conciliatory board, but you (will) see it. If I fail to kill you, then I will

employ people to kill you." Later that night the complainant was indeed attacked.

His evidence as regards the attack and the identity of the attacker was supported by

PW2 and PW3 who were with him at the time. In H her defence, however, the

appellant stated that she left her house at 8.30 p.m. and proceeded to Kondoa by

Night Bar (not the complainant's) where she stayed until midnight. She then

returned home accompanied by DW2 and DW3 and straight went to bed. Next day,

at about 10 a.m., she got I news of the complainant's attack. She went to the hospital

to see

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LUGAKINGIRA J

A him but learned that he had not been admitted. She could not go to the

complainant's house because (naturally) the complainant's wife was hostile to her.

Four days later when she was herself admitted in hospital she heard that the police

were looking for her. Upon her discharge she reported B at the police station to

inquire and was then accused of this offence. DW2 and DW3 corroborated her alibi.

The trial magistrate decided to believe the complainant and his witnesses. He

dismissed the alibi as untrue on the ground that the appellant's witnesses had

contradicted themselves. Whereas DW2 C stated that on arrival at the appellant's

house from Kondoa By Night Bar he and DW3 went their separate ways, DW3 stated

that she and her husband were staying in the same house with the appellant and that

actually she (DW3) slept in the appellant's room as the appellant was not feeling well.

Because of this contradiction the trial magistrate held that the alibi had not been

corroborated D and commented that the defence witnesses were intent on distorting

justice.

Although this was a simple case it raises rather significant questions, namely

credibility or the role of an appellate court in that regard, the burden of proof in an

alibi and corroboration. I will deal with these matters seriatim.

E The law as regards the role of an appellate court in matters of credibility is settled

beyond paradventure. The trial court which has seen and heard the witnesses,

thereby being privileged to observe their manner and demeanour, is certainly in a

better position to assess their credibility than F an appellate court which has not had

these advantages. It has therefore been consistently held that an appellate court will

not lightly interfere in the trial court's finding on credibility unless the evidence

reveals fundamental factors of a vitiating nature to which the trial court did not

address itself or address itself properly.

G As a rule of practice, therefore, a first appeal assumes the character of a retrial and

as stated in The Glannibanta (1876), 1 P.D. 283, an appellate court:

cannot excuse itself from the task of weighing conflicting evidence and

drawing its own inferences and H conclusions, though it should always bear in mind

that it has neither seen nor heard the witnesses, and should make due allowances in

this respect.

This case was followed by the Court of Appeal in Pandya v R. [1957] E.A. 336 as was

Coghlan v I Gumberland [1898]1 Ch. 704 where it was also stated:

1984 TLR p164

LUGAKINGIRA J

there may obviously be other circumstances, quite apart from manner and

demeanour, which may show A whether a statement is credible or not; and these

circumstances may warrant the court in differing from the (trial) judge, even on a

question of fact turning on the credibility of witnesses whom the court has not seen.

B

In the case before me the trial magistrate stated emphatically that he believed PW2

and PW3. I think, however, that there were factors which, on a proper consideration,

raise doubts as to the credibility of the two witnesses. First of all, PW2 was in court

when the complainant testified. I am not saying C that it is in every case that a

witness will be doubted when he hears the evidence of a preceding witness, but when

such first mentioned witness is called to give evidence of precisely the same import as

the preceding witness, it cannot be seriously suggested that his is an independent

mind. D The court would therefore be bound to approach such evidence with

reservations. Secondly, PW3 was an employee of the complainant. Undoubtedly, she

had an interest of her own to serve and, unlike the learned trial magistrate, I cannot

consider her to have been free of partiality. There E was reason to doubt her as well.

Thirdly, neither PW2 nor PW3 reported the appellant anywhere either that night or

at any time thereafter. In fact, PW3 escorted the complainant to the police station on

route to the hospital at 5 a.m. but neither he nor the complainant himself mentioned

the appellant then. Interestingly, too, not a single police officer was called to testify

on this or any other aspect. F On the other hand, PW3 abandoned the complainant

at the scene and silently went to sleep. Fourthly and finally, PW2 and PW3

contradicted themselves as to who, among them, was in a position to identify the

assailant. The relevant portions of their evidence are very revealing and I G take the

liberty to cite them. In the words of PW3:

As Abdallah fell backward on me he left the door open and I ran to it in order

to shut it and soon I saw the accused with a bush knife in her hand. I hurried to shut

(it) for fear that she would do more harm to Abdallah H ....

But from PW2 we get a different impression, first, as to whether the complainant left

the door open or shut upon being attacked and, second, as to who hurried to shut or

open it, and who, therefore, I was in a position to see the assailant. He said:

1984 TLR p165

LUGAKINGIRA J

A I hurried to open the door to see who was the assailant and saw Pia Joseph

with a panga. I immediately shut the door to avoid further attack from her.

He then added, and no less significantly:

B Mama Wawili (i.e. PW3) was behind us and when I hurried to see who was

the assailant she remained rubbing off blood on the complainant's forehead.

I think that having regard to these contradictions and the other factors stated in this

connection, it C was unsafe to hold that the two witnesses were credible in their

purported identification of the assailant. It is therefore difficult to uphold the finding

of the trial magistrate.

The same applies to the complainant himself. As just seen he never mentioned the

appellant to the D police on the very first occasion. According to his own evidence

he did so four days later. Yet no reason was suggested for that four-day silence. The

only reasonable inference is that he could not have identified his assailant as claimed

but later picked on the appellant ostensibly because of E suspicion. I have already

set out the relationship between him and the appellant. It was that of intense enmity.

A dispute was actually pending before the elders. I have also indicated how earlier

that morning the appellant had threatened to kill the complainant. These were

factors which could F lead a person in the complainant position honestly but

mistakenly to suspect the appellant. As stated in Abdallah Wendo v R. (1953) 20

EACA 166.

a witness may be honest yet mistaken, and may make erroneous assumptions

particularly if he believes that G what he thinks is likely to be true must be true.

It must have been so with the complainant. He had grounds to believe that what he

thought was likely to be true must be true. Yet I cannot say that he was also honest

in his belief since it took him H four days weighing up the chances. There was

therefore prevarication and soul searching and this, in my view, could only have been

because he had not recognised or correctly recognised his assailant.

On the other hand, I cannot say that the prior threat by the appellant was not

without significance. I But since threats do not necessarily materialise, I cannot say,

either, that the threat in this case provided irresistible evidence. A threat made in the

1984 TLR p166

LUGAKINGIRA J

circumstances of this case can at best afford corroboration to other credible evidence.

In Waihi v A Uganda [1908] E.A. 278 the appellant had announced his intention to

kill the deceased and indeed the deceased was killed. The Court of Appeal observed

that

Evidence of a prior threat or of an announced intention to kill is always

admissible evidence against a person B accused of murder, but its probative value

varies greatly and may be very small or even amount to nothing.

The Court went on to uphold Waihi's conviction for murder because the threat

corroborated other C evidence incriminating him. In the case before me there was

an alibi tending to exculpate the appellant and to this I will now turn.

It was confirmed by DW2 and DW3 that indeed the appellant was at Kondoa By

Night Bar from around 8.30 p.m. to sometime after midnight and that they escorted

her home. The trial magistrate D disbelieved those witnesses because they appeared

to contradict themselves as to what happened after they had arrived at the appellant's

house. In law the accused has no obligation to prove an alibi. The burden always

remains on the prosecution to prove their case beyond reasonable doubt. E The

accused, if he elects to testify, is only expected to adduce such evidence as would

suggest to the court that his story could possibly be true. As held by this Court in

Mwakawanga v R. [1963]E.A. 6: F

an accused putting forward an alibi as an answer to a charge made against him

does not in law thereby assume any burden of proving that answer. It suffices to

secure acquittal that the accused by such evidence as he may choose to adduce

introduces into the mind of the court a doubt that is not unreasonable". G

It was similarly held by the High Court of Uganda in Sakitoleko v Uganda [1967] E.A.

531, and I agree, that: H

It is a wrong statement of the law that the burden of proving an alibi lies on

the prisoner. It is the duty of a Criminal Court to direct its mind properly to any alibi

set up by a prisoner; and, it is only when the court comes to the conclusion that the

alibi is unsound that it would be entitled to reject it. As a general rule of law, the I

burden of proving the guilt of a prisoner

1984 TLR p167

LUGAKINGIRA J

A beyond reasonable doubt never shifts whether the defence set up is an alibi or

something else. That burden always rests on the prosecution."

In the instant case the trial magistrate rejected the appellant's alibi because of an

immaterial B contradiction in the defence evidence. He thereby incorrectly cast

upon her the burden of proving the alibi beyond reasonable doubt. I say that the

contradiction was immaterial because it did not relate to the fact that the appellant

had been at Kondoa By Night Bar till midnight or the fact that she C was from there

escorted straight home. It related to what DW2 and DW3 did after that.

I think that this is the appropriate juncture to touch on corroboration. Corroborative

evidence, as I understand it, is that which has the effect of confirming in material

particulars the evidence requiring D corroboration. In the words of the Court of

Appeal in Mande v R. [1965] E.A. 193 at p.199.

The corroborative evidence required is that which shows or tends to show that

the story of the person whose E evidence is to be corroborated is true.......

The material particulars in this case, the evidence which required corroboration, was

whether the appellant was at Kondoa By Night Bar till midnight and whether from

there she went straight to bed F so as not to be in a position to commit the attack at

11 p.m. at the complainant's bar. These matters were corroborated. Without

belabouring the point further, I think that a reasonable doubt had been raised for the

alibi could possibly have been true. This doubt was immensely fortified by the fact

G that it took the complainant four days to make up his mind as to who his assailant

could have been. Had the trial magistrate directed himself in the manner I have

attempted to I cannot say that he would nevertheless have found the appellant guilty

of any offence.

H I was therefore of the view, which view I shared with learned counsel for the

Republic, that the charge had not been proved beyond reasonable doubt and I

allowed the appeal as aforesaid.

Appeal allowed.

1984 TLR p168

A