MICHAEL LUHIYE v REPUBLIC 1994 TLR 181 (CA)

 

MICHAEL LUHIYE v REPUBLIC 1994 TLR 181 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

CRIMINAL APPEAL NO. 77 OF 1993 B

1 August, 1994

(Appeal from the conviction of the High Court of Tanzania at Tabora, Korosso, J) C

Flynote

Criminal Practice and Procedure - Trial with assessors - Assessors not given

opportunity to cross-examine witnesses individually - Effect thereof.

Evidence - Confession made involuntary - Circumstances of confession not seriously

and D comprehensively considered by the court - Whether proper.

Evidence - Corroboration - Uncorroborated retracted confession - Whether courts

may convict on a retracted confession without corroboration.

-Headnote

The appellant is this case appealed against conviction the murder contrary to s E 196

of the Penal Code. He argued that the trial was a nullity as it was conducted without

the aid of assessors; that the assessors were not given opportunity to cross-examine

the witnesses individually, instead they cross-examined them together and the

witnesses answered them together; that the confession from him F to the police was

involuntary as he was subjected to violence before he made it; and that hsi confession

was retracted but was nevertheless relied upon by the court without independent

evidence to corroborate it.

Held:

(i) In a trial with assessors the Trial Judge should allow each assessor who

wishes to cross-examine the witness individually and the answer thereto should be

recorded separately; therefore it was improper and an irregularity not to have done so

in this case;

(ii) For a trial in a criminal case to be a nullity it must be shown that the G

irregularity was such that it prejudiced the accused and therefore occasioned failure

of justice; in this case the Trial Judge gave a summing-up of the evidence to the

assessors, and took into account as to the guilt or otherwise of the appellant and

therefore it cannot be declared a nullity;

(iii) It is always desirable to look for corroboration in support of a retracted

confession before acting on it but a court may convict on retracted H confession

even without corroboration. I

1994 TLR p182

Case Information

A Appeal dismissed.

Cases referred to:

(1) R v Gae s/o Maimba and Another [1945] 12 EACA 82.

(2) R v Kaperere s/o Mwaya [1948] 15 EACA 56.

(3) Tuwamoi v Uganda [1967] EA 84.

B Muhula, for the appellant.

Kaduri, for the respondent.

[zJDz]Judgment

Mnzavas, JA, delivered the following considered judgment of the Court: C

The appellant, Michael Luhiye, was charged with and convicted of murder contrary

to s 196 of the Penal Code by the High Court, (Korosso, J), sitting in Tabora; and the

mandatory sentence of death was handed down.

Dissatisfied with the finding of the High Court he has come to this court. D

The charge of murder alleged that the appellant on or about 19 July 1989 at the

Jionee-mwenyewe village within Urambo district, Tabora region, murdered one,

Mohamed Rashidi.

E After a full trial the High Court (Korosso, J) was satisfied that the prosecution had

proved the charge of murder against the appellant beyond reasonable doubt and, as

already mentioned above, convicted him and imposed the death sentence.

F Before us Mr Muhula, learned defence counsel complained that the trial was a

nullity as, it was argued, it was conducted without the aid of assessors. In support of

his argument Mr Muhula referred the Court to pages 6, 7, 12 and 15 of the

proceedings where it is shown that the three assessors were not given the opportunity

to cross-examine the witnesses individually. The record appeared to G show that all

the assessors cross-examined the witnesses together and the witnesses answered them

together. This procedure was, according to the learned counsel's submission,

tantamount to trying the case without the aid of assessors and we were invited to

make a finding that the trial was a nullity.

H In the alternative, but without prejudice to the above argument, the learned

defence counsel submitted that the trial court did not seriously and comprehensively

consider the circumstances under which the appellant confessed to the killing. It was

argued that had the learned judge properly directed his mind to the evidence before

him he would have found that appellant's confession to the police - exhibit C, was

involuntary as, it was submitted, the appel- I

1994 TLR p183

MNZAVAS JA

lant was subjected to violence before he gave his confessional statement. A

As to the evidence of the village chairman, (PW3), who testified that the appellant

had voluntarily confessed to the killing of the deceased and that the appellant gave

the reason for the killing as deceased's taking his (appellant's) fiancÅe and deceased

making him (appellant) impotent by means of witchcraft, Mr Muhula B argued that

the appellant had retracted his confession and that there was no independent

evidence that corroborated the retracted confession that it was the appellant who

murdered the deceased. The learned defence counsel prayed that the appeal be upheld

and appellant be set free. C

In rebuttal Mr Kaduri, learned Senior State Attorney, conceded that it was irregular

on the part of the learned trial judge to record the cross-examination of the assessors

in an `omnibus' fashion but it was argued that the irregularity did not occasion failure

of justice. D

As for the argument that the retracted confession should not have been relied upon

by the trial judge to convict the appellant Mr Kaduri, learned counsel for the

Republic, submitted that the confession of the appellant was so detailed that it could

not have been narrated by any person other than the appellant. It was argued E that

there was no evidence that the appellant was subjected to such violence as would

have induced him to say to the police what he would not have said.

The court was asked to find that appellant's cautioned statement to the police and his

statement to the chairman (PW 3), that it was he who killed the deceased were F

free and voluntary and that the appeal should be dismissed.

We have minutely examined the evidence tendered before the court of first instance

and we agree with the learned defence counsel that it was improper for the trial judge

to allow the assessors to participate in the trial of the case the way G they

participated. In a trial with assessors, as it was in this case, each assessor (if he wishes

to cross-examine) has to cross-examine the witness/s individually and the answers

thereto should be recorded separately.

There was clearly an irregularity in the way the assessors participated in the H

hearing of this case. But as Mr Muhula, learned defence counsel, will no doubt agree

on reflection, it is one thing to say that there was an irregularity in the manner the

assessors participated in the hearing of the case, and quite another thing to say that

such irregularity vitiated the proceedings. Before pronouncing any proceeding in a

criminal case to be a nullity it must be shown that the I

1994 TLR p184

MNZAVAS JA

A irregularity was such that it prejudiced the accused and therefore occasioned

failure of justice.

In the present case it is amply clear that the trial court gave a summing up of the

evidence to the assessors' and taking into account their opinions as to the guilt or

otherwise of the appellant it cannot, with any stretch of the imagination, be said that

the trial of the appellant was conducted without the aid of assessors. B

It is our considered view that the irregularity did not in any way occasion failure of

justice. That disposes the first ground of appeal.

Coming to the second ground of appeal that there was no corroboration of C

appellant's retracted confession and that the learned trial judge did not warn himself

of the danger of basing a conviction on such evidence we, with respect agree with the

learned defence counsel, that it is always desirable to look for corroboration in

support of a confession which has been retracted before acting on such confession to

the detriment of an accused person; but with even greater D respect to the learned

counsel there is a long and unbroken chain of authorities that a court may convict on

a retracted confession even without corroboration.

In the case of R v Gae s/o Maimba and Another (1) it was held that: E

`There is no rule of law or practice making corroboration of a retracted

confession essential. Corroboration of a retracted confession is desirable but if the

court is fully satisfied that the confession cannot but be true, there is no reason in law

why it should not act upon it.' F

In another decision three years later the Eastern Africa Court of Appeal said in R v

Kaperere s/o Mwaya (2)

G `A Court may convict on a retracted confession even without corroboration

though such confession must be received with great caution and reserve.'

There are many other decisions by the Eastern African Court of Appeal, the East

Africa Court of Appeal and the Tanzania Court of Appeal to the same effect. To H

mention the celebrated decision in the case of Tuwamoi v Uganda (3) the court had

this to say inter alia:

`We would summarise the position thus: a trial court should accept any

confession which has been retracted or repudiated with caution, and must before

founding a conviction on such a confession be fully satisfied in all the circumstances

of the case that the confession is I

1994 TLR p185

MNZAVAS JA

true. The same standard of proof is required in all cases and usually a court will

only set on A the confession if corroborated in some material particulars by

independent evidence accepted by the court. But corroboration is not necessary in

law and the court may act on a confession alone if it is fully satisfied after considering

all the material points and surrounding circumstances that the confession cannot but

be true.' B

Coming to the case in hand it is true as rightly argued by the learned defence counsel,

that the learned judge did not fully advert his mind to the law that a retracted

confession should be accepted with caution but in his judgment he appears to have

been satisfied in his mind that taking into account the circumstances of the case the

confession could not but be true. C

That he was of that view is evident from his pronouncement on page 33 of the typed

judgment where he says inter alia: D

`... I am fully convinced that the accused went to the chairman and confessed

killing the deceased.... PW3 is a highly respected person in the village of Jioneemwenyewo.

He has been the village chairman for seven years in succession. It is

difficult to entertain the least belief that PW3 could have decided to implicate the

accused in this capital offence.... There E was no evidence that PW3 was related to

the deceased.... The contents in exhibit C1 are so detailed and intimate that nobody

else but the accused could have made it from the treasures of his heart.'

The learned trial judge then concluded that appellant's confession to the police - F

exhibit C1 was free and voluntary and convicted the appellant of the offence of

murder as charged.

With respect to the learned judge we agree with his finding that appellant's cautioned

statement to the police was so detailed, elaborate and thorough that no G other

person could have made the statement but the appellant. His cautioned statement to

the effect that he decided to attack the deceased with a panga and a stick on the head

after he was told by witch doctors that it was the deceased who had made him

(appellant) impotent by means of a witchcraft was so personal that no other person

would have such information. So was his statement that he had H visited

Government hospitals in Urambo and Kibondo and a number of witch doctors for

treatment but that he could not regain his virility.

And, to crown it all, his cautioned statement to the police officer, PW1, that he cut

the deceased on the head with a panga tallied with the post-mortem report - exhibit

P1 which showed that the deceased I

1994 TLR p186

A had a cut wound on the head. The evidence amply corroborated appellant's

retracted confession; if corroboration was necessary. Maybe it is also not irrelevant to

mention that it is the appellant who led the village chairman (PW3) to his

(appellant's) house where he produced the panga he had used in attacking the

deceased.

B For evidence to be so consistent the only common denominator, save perjury,

must be truth. Appellant's retracted confession was, in our considered view, a clumsy

attempt to evade the consequences of his acts.

C We are satisfied that the appellant was properly convicted of the offence of

murder as charged. The sentence of death is mandatory. In the event we order that

the appeal be dismissed in it entirety.

1994 TLR p186

E