For the appellant was Mr. M. J. T. Ngalo, learned advocate, who filed five grounds
of appeal but argued them together because, as he said, they all attack the reliance on the confessions. Mr. Ngalo conceded that
the admission of the cautioned statement was objected to in the preliminary hearing but not at the trial nevertheless, he submitted,
there ought to have been a trial within a trial. The learned advocate queried why Dotto, who was arrested after being mentioned by
the appellant, was recorded before the appellant. He pointed out further that Dotto in his extra-judicial statement (Exh P5) did
not mention the appellant at all and that Dotto named one Said as the one who was cut at the wrist by the deceased. Mr. Ngalo contended
that Exh P5 differs materially from Exh P3, Dottofs caution statement.
On behalf of the respondent/Republic was Mr. William Magoma, the learned State Attorney,
who said that the sequence in which statements were taken is not of significance. He submitted that there was no need of a trial
within a trial as there was no objection from the learned defence counsel to the admission of the statements.
We agree with Mr. Magoma that a trial within a trial was not necessary. That is done
only if there is an objection to the admission of a statement on the ground that it was not freely given. Here there was none. Again
for the issue of the admission of the extra-judicial statements, which had not been tendered at the preliminary hearing, we are of
the considered opinion that the defence counsel did not object to that. Apart from that there is nothing in section 192 of the Criminal
Procedure Act, 1985, which provides for preliminary hearing, prohibiting the admission of a document which was not referred to at
the preliminary hearing.
We are satisfied that the appellant was arrested because of the cut wound on his
left wrist. He has three versions of how he came to sustain that injury: The first is his cautioned statement, Exh P4:
Naliwaeleza kuwa nimelipata jeraha hilo baada ya kukatwa na marehemu ambae tumemuua huko kambini c nilikatwa na marehemu wakati
nilipotaka kumnyangfanya baiskeli yake.
This is a clear confession.
The second version is his extra-judicial statement, Exh P6:
Nilikuwa natoka kusaga muda kama saa sita nilienda kama urefu wa heka nane hivi hamadi nikashituka nakatwa na panga na marehemu mkononi.
Mimi nikaanza kukimbia.
He claims that he was attacked by the deceased for no reason at all.
The last version is his testimony in court that gI sustained the cut wound
during the Police tortures.h Here he completely distances himself from having anything to do with the deceased. However, the
Justice of Peace, PW 4, in cross-examination, was emphatic that the appellant, unlike Dotto, did not complain of Police torture at
all.
It is abundantly clear to us that the appellant is an unabashed liar: his three stands
are completely irreconcilable. He claims in Exh P6 that he was attacked by the deceased. Yet in court he said that he did not know
the deceased at all. How then did he know that he was attacked by the deceased?
Lies of an accused person, appellant here, may corroborate the prosecution case.
That was held to be so in a Zanzibar case of Kombo bin Khamis v. The Crown 8 ZLR 122. RUBAMA, J. was of the same opinion in Salum Yusuf Lilundi v. R, Criminal Appeal No. 26 of 1984, Mtwara Registry (unreported). There three persons were accused of theft, two of them confessed while
the third, a watchman, denied even being on duty on the material night while in fact he was. His lies were held to corroborate the
confessions of the other two.
The appellant in Exh P6 owns to have met the deceased on the fateful day but accidentally.
However, we are convinced that he gave the circumstances under which they had this encounter in Exh P4, the cautioned statement,
which is so detailed that the story cannot but be true.
For avoidance of doubt, we must state here that we are not putting the burden of
proof on the appellant. But this is one of the cases where a person has been killed, and there is no question about it, and the only
witnesses are the accused persons. All that the prosecution can do is to bring witnesses who would tell the court that the accused
persons have made confessions before them. The court would then have to scrutinize those confessions very closely.
This is in line with the amendment in the Criminal Procedure Act, 1985 which now
permits the court to draw adverse inference against an accused person who decides to keep quiet. Section 293 (3) provides:
(3) If the accused person, after he has been informed in terms of subsection (2), elects to remain silent the court shall be entitled
to draw an adverse inference against him and the court as well as the prosecution shall be entitled to comment on the failure by
the accused to give evidence.
We are of the decided opinion that what we have said and done here are pertinent
in the interest of justice. We, therefore, dismiss the appeal.
DATED at DAR ES SALAAM this 02 day of September, 2005.
.RTF of original document