Mtaki S/O Malima vs Republic (Criminal Appeal 119 of 2020) [2020] TZHC 3871 (19 November 2020)

Key Facts

Issues

• The fourth ground alleged the expert witness (Pw5 Dr. Andrew) did not introduce his professional credentials. The court found that Dr. Andrew sufficiently disclosed his background, including his medical qualifications and 12 years of experience. Section 240 of the Criminal Procedure Act allowed his report (PF3) to be admissible without further introduction, and the appellant's failure to cross-examine him on this matter was deemed an acceptance of his competence.
• The sixth ground argued the trial court violated the principle from Mbagala Mkulima v. R. by failing to provide a reasoned judgment. The court found the trial magistrate's judgment sufficiently addressed key issues (identification and guilt) with clear reasoning. The decision balanced prosecution and defense evidence, fulfilling the requirement for a reasoned judgment under the law.
• The second ground argued the trial magistrate erred by not summoning a 9-year-old who slept with the victim. The court dismissed this, noting the child's age and the lack of relevance to the case. The victim's identification of the appellant through the torchlight and her immediate reporting to her grandmother was deemed sufficient, and the trial court's discretion not to call the child was upheld.
• The third ground questioned the absence of a voire dire examination for the 13-year-old victim. The court clarified that post-2016 amendments to the Evidence Act replaced voire dire with a requirement for the victim to promise to tell the truth. The victim fulfilled this obligation, and the court held that the trial magistrate did not err by not conducting a voire dire.
• The first ground of appeal challenged the admissibility of Pw2 Nyasungo's evidence, which the victim's grandmother provided. The court evaluated whether this testimony constituted hearsay and dismissed the ground, finding that the grandmother's evidence was immediate, not hearsay, and corroborated by other witnesses. The victim directly reported the incident to her grandmother, who observed injuries and blood, and the court emphasized the importance of the victim's prompt identification of the appellant.
• The fifth ground claimed the trial court omitted a DNA test to connect the sperms found in the victim to the appellant. The court rejected this, noting that DNA evidence was not mandatory under Tanzanian law and that the victim's testimony was sufficient. The court cited precedent (Juma Mahamudu V.R) to affirm that existing procedures (e.g., PF3 reports) are adequate for rape convictions, even in the absence of DNA confirmation.

Holdings

• The court rejected the appeal ground about not summoning the 9-year-old who slept with the victim, finding no legal obligation to call the witness and noting his testimony was not critical to the case. The victim's identification and other evidence were deemed adequate.
• The court dismissed the appeal ground regarding the failure to conduct a DNA test, holding that the victim's evidence was sufficient to prove rape. The court emphasized that DNA testing is not mandatory under Tanzanian law for rape cases and that the victim's identification and testimony, supported by medical evidence, established the offense without it.
• The court dismissed the appeal ground concerning the lack of voire dire examination for the 13-year-old victim. It clarified that post-2016 amendments to the Evidence Act require only a promise to tell the truth, not a voire dire, and the victim complied with this requirement.
• The court found the victim's grandmother's testimony (Pw2 Nyasungo) was not hearsay, as the victim reported the incident immediately. The evidence was timely and credible, supporting the trial court's reliance on it without violating the appellant's rights.
• The court determined the trial magistrate's judgment was reasoned, as it addressed key issues (identification and guilt) with clear explanations. The judgment balanced prosecution and defense evidence, fulfilling the requirement for a reasoned decision under Tanzanian law.
• The court upheld the trial magistrate's decision to rely on the expert witness (Dr. Andrew) who adequately introduced his qualifications. The witness's competence and the opportunity for cross-examination satisfied legal standards under the Criminal Procedure Act.

Remedies

• The conviction for rape and grievous harm was upheld by the court.
• 2 years imprisonment was imposed for the offense of grievous harm.
• The court ordered Tzs 2,000,000 in compensation for the rape offense.
• The appellant was sentenced to 30 years imprisonment for the offense of rape.

Monetary Damages

Legal Principles

• The prosecution has the burden to prove the accused's guilt beyond a reasonable doubt. The victim's testimony and supporting evidence were sufficient to meet this burden, leading to a valid conviction.
• The court held that DNA evidence is not mandatory for proving rape under Tanzanian law, as the victim's testimony is sufficient. The absence of DNA testing does not invalidate the conviction if other evidence is compelling.
• A child of tender age may testify after promising to tell the truth, without the need for a voire dire examination. The victim in this case made such a promise, making her testimony admissible.
• The court emphasized that a reasoned judgment must objectively evaluate all evidence, balancing prosecution and defense arguments. The trial court's judgment was found to meet this standard by addressing key issues and providing reasons.

Precedent Name

• Adondile Kombo V DPP
• Godfrey Wilson v. R
• Yohanes Msigwa v R
• Mbagala Mkulima v. R
• Juma Mahamudu V.R
• Wangiti and Another V R
• Chacha Jeremiah Murimi and 3 Others V Republic
• Robert Andondile Kombo V Republic

Cited Statute

• Evidence Act [Cap 6 R.E. 2019]
• Criminal Procedure Act [Cap 20 R.E. 2019]
• Penal Code [Cap 16 R.E. 2020]

Judge Name

Passage Text

• In matters of identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness. The ability of the witness to name the offender at the earliest possible moment is a reassuring, though not a decisive factor.
• It is trite law that in rape case the best evidence is that of the victim. The victim gave evidence how the appellant raped her. She recognized the appellant as a person who raped her. There is no doubt that the DNA test would have linked the sperms found on the victim's private part and the appellant. The DNA test would have been an additional evidence but not the only evidence to prove rape, the absence of which, this case would have collapsed.
• A promise to tell the truth to the court is distinct from conducting voire dire examination. In the Case of Robert Andondile v R (supra) the Court of Appeal held that the requirement of a witness to promise to tell truth came into force on 8/7/2016. The victim in this case testified on the 2/7/2020 thus, she was required to promise to tell the truth. The trial magistrate was not required to conduct a voire dire examination.