In the District Court of Same, the appellant was arraigned and. convicted for two counts of incest by males, contrary to section 158(1) (a)

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1 IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUSSA, J.A., MWARIJA, J.A., And MWANGESI, J.A.) CRIMINAL APPEAL NO. 78 OF 2016 ISAYA CONSTANTINE APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Sumari, J.) dated the 7th day of March, 2015 in DC. Criminal Appeal No. 53 of th March & 2nd May, 2018 MUSSA, J.A.: JUDGMENT OF THE COURT In the District Court of Same, the appellant was arraigned and convicted for two counts of incest by males, contrary to section 158(1) (a) of the Penal Code, Chapter 16 of the Revised Laws. Upon conviction, he was sentenced to serve a term of thirty years imprisonment. His appeal to the High Court was dismissed in its entirety (Sumari, J.), hence this second appeal. Before we address the issues of contention, we think it is necessary to unveil the circumstances which led to the appellant's arrest, arraignment and his ultimate conviction before the trial court. 1

2 From a total of seven witnesses and a two documentary exhibits, the case for the prosecution was to the effect that, on divers dates between the year 2011 and May 2014, at Majevu area, within Same Township and District, the appellant had prohibited sexual intercourse with Doris Isaya Mbaga and Jasmine Isaya Mbaga who are, to his knowledge, his biological daughters. The alleged victims of the prohibited sex were featured into the witnesses' box as, respectively, prosecution witnesses Nos. 1 and 2. In her testimony, Jasmine (PW2) introduced herself as a 12 years old pupil of Majevu Primary School, whereas her sister, Doris (PW2), told the trial court that she was aged 14 and that she was also a pupil at Kisima Primary School. The testimonies of PWl and PW2 were to the effect that, at all material times, they were residing at Mbuyuni Street, Same Township, in a house belonging to their paternal grandmother, namely, Joyce Youze (PW3). The grandmother also used to reside at her three bed-roomed house, just as was her son, the appellant who, as we have already intimated, is the biological father of PW1 and PW2. The other occupant of 2

3 that house, at that time, was Rachel Dei:-(a, who happens to be PW3's mother. According to PW3, her mother used to share one of the bedrooms with PWl and PW2, whereas the remaining two bed rooms were, respectively, occupied by herself and the appellant. We have gathered from the respective accounts of the prosecution witnesses that the appellant had separated with his wife who, at all the material times, was living in Moshi. According to PV\/1 and PW2 1 sometime in the year 2011, the appellant developed a habit of entering their bedroom in the dead of the night. He would then pick either of his two daughters and lead her into his bedroom where he, forcefully, had sex with her. Both PWl and PW2 gave an account that the appellant repeatedly sexually abused each of them in turns. They explained how each experienced untold pains but could not disclose the infidelity on account of the appellant's threats. A good deal later, in February 2014, PW3 transferred PWl from Same Township to Gonja Maore Village. She asked her friend who was living there, namely, Nzaniwe Mdingi (PW4) to host the little girl so that 3

4 she pursues her schooling at Kalemani Primary School. As it turned out, the appellant was unimpressed by the transfer of his daughter and, as a result, he kept pestering PW4 by phone calls to have his daughter returned to Same. PW4, in turn, informed PW3 of the appellant's frequent demands whereupon, in response, the latter was infuriated and consequently chased away the appellant from her house of residence. Thereafter, the appellant rented a room but, no sooner, he discreetly took along PW2 whom she stayed with at the rented room. In the meantime, the appellant continued to demand the return of PWL Eventually, on the 25th May 2014, PW4 seemingly felt enough was enough and she summoned the girl and told her to prepare herself for a trip back to Same. PW1's immediate response was to refuse being returned to Same and she went further and disclosed to PW4 that the appellant had, actually, frequently sexually abused her as well as PW2. Thereafter, PW4 informed PW3 of the detail, following which the latter reported the alleged infidelity to Same Police Station. Following the police report, the appellant was apprehended and, accordingly arraigned. That concludes the version told by the prosecution witnesses in support of the charge.

5 In reply, the appellant completely disassociated himself from the prosecution's damning account. His testimony was to the effect that the entire case for the prosecution was sheer fabrication based on a prior grudge between him and his father in law, namely, Youze Mbwambo. Nonetheless, his account did not, in the least, appeal to the trial court which was, on the whole of the evidence, impressed by the version told by prosecution witnesses. Thus, in the upshot, the trial court was satisfied that the prosecution accusations were proved to the hiit, whereupon the appellant was convicted and sentenced to the extent we have already indicated. As, again, already intimated, the first appellate court found no cause to fault the verdict of the trial court which was upheld. The appellant presently seeks to impugn the conviction and sentence by way of a memorandum of appeal which is comprised of a variety of points of grievance. Unfortunately, for a reason that will shortly become apparent, we need not reflect on the merits or demerits of the raised points of grievance, save for ground No. 5. Suffice it to remark that it is significantly noteworthy that, 5

6 despite being children of.ender age at the time of testimony, PVV1 and PW2 were not subjected to a voire dire test as was then required by the now re-enacted section 127 of the Tanzania Evidence Act, Chapter 6 of the Revised Laws. To us, the appeal turns on this disquieting aspect of the trial proceedings below. When the appeal was placed before us for hearing, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Ms. Sabina Silavo who was beino assisted by Ms. Marv, Lucas, both learned State Attorneys. The appellant commenced his address by fully adopting the memorandum of appeal which he commendably elaborated. Incidentally, as we have hinted upon, in ground No. 5 of the memorandum of appeal, the appellant criticizes the trial court for not subjecting PWl to a voire dire test. In reply to this complaint, after a brief dialogue, Ms. Silayo eventually conceded that the testimonies of PWl and PW2 were vitiated on account of the trial court's omission to conduct a voire dire test. In adopting the stance, the learned State Attorney partly relied upon the 6

7 recent decision of the full bench in the unreported Criminal Appeal No. 300 of Kimbute Otiniel Vs. The Republic. But, as she so conceded, Ms. Silayo impressed upon us to nullify the entire proceedings and order a new trial, the more so as the omission to conduct the test was occasioned by the trial court to which the prosecution was not blameworthy. Addressing the point of contention, we are keenly aware that the law on the reception of child evidence evolved conflicting decisions of the Court but, in Kimbute Otiniel (supra), the Court meticulously pronounced that the consequences of the misapplication or non-direction in the conduct of a voire dire test should henceforth be resolved in the followinq manner: Each case is to be determined on its own set of circumstances and facts. 2. Where there is a complete omission by the trial court to correctly and properly address itself on sections 127(1) and 127(2) governing the competency of a child of tender years/ the resulting testimony is to be discounted. 3. Where there is a misapplication by a trial court of section 127(1) and/or 127(2) the 7

8 resulting evidence is to be retained on the record. Whether or not any credibility reliability weight or probative force is to be accorded to the testimony in whole/ in part or not at all is at the discretion of the trial court. The law and practice governing the admissibility of evidence; cross examination of the child witness/ critical analysis of the evidence by the court and the burden of proof beyond reasonable doubt continue to apply. 4. tn 1-hQC'Q seme f'::lrl-c' and rirr, tmstences Ii p.li (11..., ,. u, /L,11,,.,L-' 11 '6.Jll'-''--'' '.::,Lu,_ , l' '- No. 2) where there is other independent evidence sufficient in itself to sustain and guarantee the safe and sound conviction of an eccused. the court may proceed to determine the case on its merit always bearing in mind the basic duties incumbent upon it in a criminal trial and the fundamental rights of the accused. 5. However. in these same facts and circumstances (i.e. No. 2J where the evidence of the child witness is the only; decisive or vital evidence for the prosecution and its consideration would seriously 8

9 prejudice the accused and his or her basic rights or occasion a miscarriage of justice or would result in an unsafe conviction the evidence should be discounted and cannot form the basis of a conviction. 6. A first appellate court has a prompt and prime duty to ascertain compliance by a trial court with the strict requirements of sections 127(1) and 127(2). It is suitably posed to re evaluate the matter, including the whole evidence and come to its own conclusion. Where appropriate/ it may also order a retrial according to the law and/or make any other /...,..,;:,,I r.rrlnr-,-,,,. rlaricinn // / avv, u, u, uc.., v, u._._.,..j,v,,. To cull from the extracted holding, the situation at hand falls squarely under item No. 2 which relates to a complete omission by the trial court to address itself on the requirements of a voire dire test. Thus, as correctly conceded by Ms. Silayo, we are left with no other viable option than to discount and expunge the testimonies of both PWl and PW2 from the record of the evidence. 9

10 As we do so, we think it is instructive to interject a remark, by way of a postscript, that, of recent, this long standing requirement of a voire dire test was laid to rest upon the enactment of the Written Laws (Miscellaneous Amendments (No. 2) Act, No. 4 of 2016 which was promulgated on the gth July, Through this Act, the provisions of subsections (2) and (3) of section 127 were deleted and substituted with the following: - "(2). A child of tender age may give evidence without taking an oath or making an affirmation but shall before giving evidence/ promise to tell the truth to the court and not to tell any lies. " With this provision, the requirement of a voire dire test has been effectively foregone but, as we have hinted upon, our remark is no more than "a by the way", much as Act No. 4 of 2016 was not in force at the time of the trial proceedings at hand. 10

11 To resume to the matter under our consideration, having expunged the testimony of PWl, we are, admittedly, left with a skeleton of the prosecution case and, worse still, the material accounts of PW3 and PW4 automatically depreciate to hearsay testimony. It is, indeed, obvious that this disquieting aspect of the proceeding was occasioned by the laxity of the trial court magistrate and the issue facing us is as to what order should fittingly be made to avoid a failure of justice. Whilst we unhesitatingly accept that the nullification of the entire proceedings of the two courts below is unavoidable, it remains to be considered whether or not an order for retrial is fitting in the circumstances of this case. In that regard, we have dispassionately pondered over Ms. Silayo's invitation to nullify the entire proceedings with an order for a new trial. True, on several occasions, this Court had ordered a retrial in situations where the trial proceedings were vitiated by the laxity of the presiding officer for which the prosecution was not to blame (see, for instance, the decision m M'kanake V R [1973] E.A. 67; as well as the unreported decisions in Criminal Appeal No. 141 of Marko Patrick Nzumila V R and; Criminal Appeal No. 199 of Makumbi Ramadhani Makumbi and 11

12 four others V R). In, for instance, the referred case of Nzumila the Court remarked:- "The term ''failure of justice" has eluded a precise definition but in criminal law and practice/ case law has mostly looked at it from an accused /eppetenrs point of view. But in our view the term is not designed to protect only the interests of the accused. It encompasses both sides in the trial. Failure of justice or (sometimes. referred to as "miscarriage of justice) bes, in more than one occasion been held to happen where an accused person is denied an opportunity of an acquittal (see for instance WILLIBARD KilviA1VGO V. R. Criminal Appeal No. 235 of 2007 (unreported)) but in our considered view;. it equally occurs where the prosecution is denied an opportunity of a conviction. This is because/ while it is always safe to err in acquitting than in punishment it is also in the interests of the state that crimes do not go unpunished. So/ in deciding whether a failure of justice has been occasioned, the interests of both sides of the scale have to be considered.

13 In the present case by unwittingly allowing PWl/ PW2 and PW7 to give unaffirmed testimony; the trial court certainly prejudiced the prosecution case substantially as those were crucial witnesses for its case but for which they were not to blame for giving of their evidence in violation of the law. To that extent we thiok, there was a failure of justice// Thus, on a parity of reasoning, the failure, by the trial court, to conduct a voire dire test with respect to PWl and PW2 certainly prejudiced the case for the prosecution much as its entire accusation rested on their tale. But, as we shall shortly demonstrate, such is not the sole factor to be taken into consideration and, what is more, even where the prosecution is not the blame-worthy party, it does not necessary follow that a retrial should be ordered. In, for instance, the case of Fatehali Manji V R [1966] E.A. 334 the following factors were highlighted: - "In general a retrial will be ordered only when the original trial was illegal or defective/ it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a

14 conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it." [Emphasis supplied.] We may add to these factors that an order for retrial would not be made where; on the whole of the evidence, the conviction is unsustainable. This will certainly guard against the prospect of giving the prosecution a chance to fill in gaps in its evidence at the trial. Having the foregoing considerations in mind, it is now opportune for us to determine whether or not a retrial will meet the justice of this case. If we may express at once, we purposely unveiled the factual setting in detail to postulate, beyond question, that the trial was evenly contested by either side. To this end, all things being equal, we are fully satisfied that, in the circumstances of this case, a retrial is justifiable. 14

15 In sum, we are constrained to allow the appeal and, in fine, the entire proceedings and decisions of the two courts below are, hereby, nullified with a consequential order of a retrial before another magistrate of competent jurisdiction. In the meantime, the appellant should remain in custody while he awaits the resumption of the trial. Just in case the new trial ends with a conviction, at the sentencing, the convicting court should take into account the period which the appellant had spent in custody. Order accordingly. DATED at DAR ES SALAAM this 27th day of March, K. M. MUSSA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL S. S.MWANGESI JUSTICE OF APPEAL 15