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
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
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
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 Jionee-mwenyewo. 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
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.
E
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