IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A. And RUTAKANGWA J.A.)
CRIMINAL
APPEAL NO. 19 OF 2007
MATHEW
STEPHEN @ LAWRENCE
VERSUS
THE
REPUBLIC………………………………………….RESPONDENT
(Appeal
from the Conviction of the High Court of
(Mchome,
J.)
dated
the 31st day of October, 2005
in
HC. Criminal Sessions Case
No. 25 of 2001
-----------
REASONS FOR JUDGMENT
KAJI, J.A.:
The appellant, Mathew
Stephen @ Lawrence, was charged with and convicted of the offence of murder
contrary to section 196 of the Penal Code, Cap.16, in the High Court at Arusha
(Mchome, J.) in Criminal Sessions Case No. 25 of 2001. He was sentence to death by hanging. He was aggrieved.
On 16.10.07, after hearing submissions
by Mr. Lundu, learned counsel for the appellant, and Mr. Boniface, learned
Senior State Attorney who represented the respondent Republic, we allowed the
appeal, quashed the conviction set aside the sentence and ordered the appellant
to be released forthwith unless lawfully held.
We reserved our reasons for the decision which we now give.
On 9.7.1998, International Forex Bureau
De Change was invaded by bandits who shot and fatally wounded the deceased
Gidion s/o Moses @ Mollel who was a security guard of the said Bureau De
Change. The deceased died later at Mount Meru
Hospital
On either 10.7.1998 or 14.7.1998 at
dawn, the appellant’s room was searched and some money and some cheques alleged
to have been stolen in the course of the robbery were alleged to have been
found therein. The appellant was
arrested and arraigned as above. He
denied the information. He was convicted
basically on the doctrine of recent possession.
He was aggrieved. Before us the
appellant was represented by Mr. Lundu, learned counsel who had preferred two
grounds of appeal namely: -
1. That
the trial court erred in law and in fact in not finding that the search of the
appellant’s room was illegal in that the police who searched the appellant’s
room were not searched before searching the appellant’s room.
2. That
the trial court erred in law and in fact for basing its finding on the
contradictory evidence of the prosecution case.
The respondent Republic was represented
by Mr. Boniface, learned Senior State Attorney.
In elaboration on the grounds of appeal
Mr. Lundu pointed out that the police who searched the appellant’s room were
not searched before searching the room.
In that respect the possibility of placing there the money and cheques
could not be ruled out. The learned
counsel conceded that he was not aware of a law requiring a police on search to
be searched before the search. However
he was of the view that, as a matter of prudence, in such a serious information
of murder, he should be searched. The
learned counsel contended further that, until the search was made and the said
money and cheques alleged to have been found, PW2 and PW3 had not mentioned
what was stolen in the course of the robbery.
He was of the view that they mentioned them (Exh. P4) after they were
allegedly found in the appellant’s room to incriminate the appellant. The learned counsel asserted that, according
to the evidence on record the searching party was big and the appellant’s room
was small with insufficient light. In
that respect the learned counsel insisted that there was a great possibility
for the police to plant the exhibits there unnoticed by the appellant.
On the issue of contradictory evidence,
the learned counsel contended that, there were a lot of contradictions in the
prosecution evidence. He cited as an
example where Ex No. E 8094 D/Sgt Kassim at first said he found the appellant’s
identity card in a taxi which was involved in another robbery. But when he was cross examined he said it was
found by other policemen and not by him.
Another example is where PW1 at first said the police who entered the
appellant’s room during the search were three.
But when cross examined he said they were two. Another example is where PW1 said the money
and cheques were found in a newspaper and whereas the Ten Cell Leader Godfrey
Andrew (PW4) said they were found in an envelope. The learned counsel also expressed his doubt
on whether PW1 was really the leader of the searching team in view of the
search certificate Exh P5 having been signed by Assistant Inspector Hitt who
did not testify. The learned counsel
wondered why the appellant’s identity card which led to his arrest was not
tendered as exhibit.
On his part, Mr. Boniface did not oppose
the appeal mainly on the grounds submitted by the appellant’s counsel. The learned Senior State Attorney wondered
why the search was made at night without a search warrant and moreover the
police had ample time to prepare a search warrant. He said the police had gone to the appellant’s
home during day time where they found the appellant missing. They returned there at dawn. In
that regard it was the learned Senior State Attorney’s view that they should
have prepared a search warrant since it was not an ambush operation. Mr. Boniface also pointed out that the
disclosure of the appellant’s bad character as a habitual criminal prejudiced
the appellant. The learned Senior State
Attorney expressed his doubt on the authenticity of the cheques in view of the
anomalies appearing thereat. He pointed
out the anomalies. The learned Senior
State Attorney also observed that no proper preliminary hearing was conducted,
and there was no evidence to prove the death and the cause of the death of the
deceased.
We
have carefully considered Mr. Lundu’s submission and the reply thereat by the
learned Senior State Attorney. We have
noted with some concern the purported preliminary hearing. The learned judge who conducted the purported
preliminary hearing recorded as follows: -
Charge read over to the accused who pleads:
Accused: Not guilty
Entered as a plea of not guilty to the charge
Agree undisputed facts: -
1.
It is accepted that Gideon Moses @ Mollel is
dead.
2.
The
deceased’s death was unlawfully caused.
3.
Cause
of death is as per post mortem examination report which is received and marked
as exhibit P.1
4.
The
accused was found with Tshs. 150,000/= when searched.
Sgn
JUDGE
4.2.2002
This was not a preliminary hearing
envisaged by section 192 of the Criminal Procedure Act and the Accelerated
Trial and Disposal of Cases Rules, 1988.
It was not indicated anywhere whether the contents of the post mortem
examination report Exh P.1 were read over and explained to the appellant in the
language he understood as required by subsection 3 of Section 192. In that respect it was necessary for the
prosecution to adduce evidence to prove the death of the appellant. See for example, the cases of MT 7479 Sgt Benjamin Holela v R (1992)
TLR 121; Efraim Lutambi VR, CAT Criminal
Appeal No. 30 of 1996 (Unreported); and Libert
s/o Hubert v R, CAT Criminal Appeal No. 28 of 1999, just to mention a few. This was not done and none of the prosecution
witnesses testified that he saw the deceased.
Second, PW2 and PW3 who were at the
scene of crime said clearly that they did not identify any of the robbers. Thus the appellant’s conviction was based
mainly on the doctrine of recent possession that the appellant was found in
possession of the 4 cheques, 150,000/=, 600 U.S. Dollars and £ 120 alleged to
have been stolen in the course of the robbery which led to the death of the
deceased, and could not give a satisfactory explanation as to how he had come
by the same. The appellant had denied the
allegation and had suspected the police to have planted the same during the
search. We have carefully considered the
circumstances under which the money and cheques were alleged to have been found
in the appellant’s room. There was ample
evidence by PW4 and the appellant and to some extent by PW1 that the room was
very small and was crowded by the searching party and the appellant with his
wife and was with little light. The
police had put on coats probably it was cold.
Under the circumstances the possibility of those exhibits to have been planted
there by the police to fix the appellant cannot be ruled out, especially
bearing in mind that the police, according to PW1, were trailing him on
suspicion that he was a habitual criminal.
Another point of some concern is where
those exhibits were found. According to
PW1 they were in a newspaper. But
according to the Ten Cell Leader PW4 they were in an envelope. This discrepancy casts more doubt on the
whole aspect of the search.
We have also noted with some concern the
contradictions in the prosecution evidence as elaborated by the appellant’s
learned counsel and accepted by the learned Senior State Attorney. We are mindful of the learned trial judge’s
remark on some of the discrepancies that some of them might have been caused by
lapse of time. But if that were the case
we would have expected the learned judge to give similar consideration to the
appellant’s contradiction on whether his money was Shs. 150,000/= or 400,000/=. But to the contrary he found this to have
been fatal. This was a double standard
approach which denied the appellant a fair assessment/evaluation of his
defence.
These are the reasons why we allowed the
appeal, quashed the conviction and set aside the sentence and ordered the
appellant to be released forthwith unless lawfully held.
DATED at ARUSHA this 26th day
of October, 2007.
J. A. MROSO
JUSTICE OF APPEAL
S. N. KAJI
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(I. P. KITUSI)
DEPUTY
REGISTRAR
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