Erythrocyte BAK someni kidogo hii then tusubiri kesho
RETRACTED CONFESSIONS
Mr. Rweyongeza argued that in order for the confessions of the appellants to be taken as a basis for their conviction it was necessary for the prosecution to establish without any shadow of doubt that the statements were voluntarily made. The learned counsel went on to argue that the circumstances, which led to the making of the statements, rule out the possibility of the statements having been made voluntarily. Submitting on behalf of the 1 st appellant, Janta Joseph Komba, he pointed out that he was arrested on 5/11/1990 and stayed in custody for four days before his statement was taken. The learned counsel submitted that the four days that the first appellant spent in custody resulted in mental torture apart from the physical torture that he was subjected to.
Mr. Rweyongeza submitted further that because the statement of this appellant was taken contrary to the procedure laid down for obtaining statements of suspects, then it ought not to have been taken into account. Counsel referred to section 169 of the Criminal Procedure Act in support of this argument.
Mr. Rweyongeza further argued that in order for a court to find that a statement was made voluntarily on the basis of details given in the statement, the details must be in relation to the commission of the crime itself and not details relating to the life of the accused like his date and place of birth, and the schools he went to.
The learned counsel made reference to the book titled: Desai’s Law Relating to Confessions and Dying Declaration by J.C. Desai at pg 273-274,281 in support of his argument that the evidence of cautioned statement or extra judicial statement is generally weak piece of evidence.
Mr. Kalolo Bundala for the fourth appellant argued that the circumstances under which the extra judicial statement was taken were such that it could not be said that the appellant was a free agent when he made the statement. The learned counsel pointed out that his client was kept in custody for 15 days before he was taken to a justice of the peace.
JUDGES OPINION:
Admittedly, the case for the prosecution was largely based on the appellants’ confessions.
The main question before us is, given the circumstances of this case can it be said that the cautioned and the extra judicial statements of the appellants were voluntarily given?
We agree with learned counsel for the appellants that being in police custody for a period beyond the prescribed period of time results in torture, either mental or otherwise. The legislature did limit the time within which a suspect could be in police custody for investigative purposes and we believe that this was done with sound reason.
It is apparently clear from the above provisions that the first and fourth appellants were held in investigative custody for much longer than the time that is provided for by the law. The first appellant was held in custody for four days. No application was made to a magistrate for extension of the period of twelve hours under which the police could hold him in custody. The fourth appellant was held in police custody for 15 days.
In the circumstances, the appellants having been held in police custody for such long period it is doubtful that the appellants were free agents when they finally made their statements.
The legislature must have had good reason for limiting the time under which a suspect could be held under police custody for investigative purposes and the police are obliged to abide by the law like every one else.
The obtaining of the statements of the appellants while still in custody outside the time provided under the law for investigative custody, contravened the provisions of the law.
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM: LUBUVA, J.A., KAJI, J.A. AND KILEO, J.A.)
CRIMINAL APPEAL NO 95 OF 2006
BETWEEN
JANTA JOSEPH KOMBA
ADAMU OMARY
SEIF OMARY MFAUME
CUTHBERT MHAGAMA
AND
THE REPUBLIC
AT DAR ES SALAAM
(CORAM: LUBUVA, J.A., KAJI, J.A. AND KILEO, J.A.)
CRIMINAL APPEAL NO 95 OF 2006
BETWEEN
JANTA JOSEPH KOMBA
ADAMU OMARY
SEIF OMARY MFAUME
CUTHBERT MHAGAMA
AND
THE REPUBLIC
RETRACTED CONFESSIONS
Mr. Rweyongeza argued that in order for the confessions of the appellants to be taken as a basis for their conviction it was necessary for the prosecution to establish without any shadow of doubt that the statements were voluntarily made. The learned counsel went on to argue that the circumstances, which led to the making of the statements, rule out the possibility of the statements having been made voluntarily. Submitting on behalf of the 1 st appellant, Janta Joseph Komba, he pointed out that he was arrested on 5/11/1990 and stayed in custody for four days before his statement was taken. The learned counsel submitted that the four days that the first appellant spent in custody resulted in mental torture apart from the physical torture that he was subjected to.
Mr. Rweyongeza submitted further that because the statement of this appellant was taken contrary to the procedure laid down for obtaining statements of suspects, then it ought not to have been taken into account. Counsel referred to section 169 of the Criminal Procedure Act in support of this argument.
Mr. Rweyongeza further argued that in order for a court to find that a statement was made voluntarily on the basis of details given in the statement, the details must be in relation to the commission of the crime itself and not details relating to the life of the accused like his date and place of birth, and the schools he went to.
The learned counsel made reference to the book titled: Desai’s Law Relating to Confessions and Dying Declaration by J.C. Desai at pg 273-274,281 in support of his argument that the evidence of cautioned statement or extra judicial statement is generally weak piece of evidence.
Mr. Kalolo Bundala for the fourth appellant argued that the circumstances under which the extra judicial statement was taken were such that it could not be said that the appellant was a free agent when he made the statement. The learned counsel pointed out that his client was kept in custody for 15 days before he was taken to a justice of the peace.
JUDGES OPINION:
Admittedly, the case for the prosecution was largely based on the appellants’ confessions.
The main question before us is, given the circumstances of this case can it be said that the cautioned and the extra judicial statements of the appellants were voluntarily given?
We agree with learned counsel for the appellants that being in police custody for a period beyond the prescribed period of time results in torture, either mental or otherwise. The legislature did limit the time within which a suspect could be in police custody for investigative purposes and we believe that this was done with sound reason.
It is apparently clear from the above provisions that the first and fourth appellants were held in investigative custody for much longer than the time that is provided for by the law. The first appellant was held in custody for four days. No application was made to a magistrate for extension of the period of twelve hours under which the police could hold him in custody. The fourth appellant was held in police custody for 15 days.
In the circumstances, the appellants having been held in police custody for such long period it is doubtful that the appellants were free agents when they finally made their statements.
The legislature must have had good reason for limiting the time under which a suspect could be held under police custody for investigative purposes and the police are obliged to abide by the law like every one else.
The obtaining of the statements of the appellants while still in custody outside the time provided under the law for investigative custody, contravened the provisions of the law.
