THE prosecution and defence yesterday locked horns in whether the Court of Appeal wrongly convicted senior superintendent of police (SSP) Christopher Bageni of murder for killing three Morogoro mineral dealers and a taxi driver from Dar es Salaam.
Defence counsel Gaudiosis Ishengoma told Justices Stella Mugasha, Ferdinand Wambali and Rehema Kerefu that his client was condemned unheard during trial and there were errors on the face of the record that resulted in a miscarriage of justice.
However, Senior State Attorney Ladislaus Komanya, who appeared for the Director of Public application for review of the court’s judgment, submitted to the contrary.
The justices said they would give their decision on the matter at a date to be given later.
Advancing submissions to support the application, the counsel said initially his client was acq uitted by the High Court in respect to the charge of murder after being found not guilty.
Therefore, he submitted, it was the Court of Appeal which reversed such findings and convicted him.
However, he was quick to point out that when evaluating the evidence, the Court led by a panel comprising Justices Bernard Luanda, Sauda Mjasiri and Semistocles Kaijage condemned Bageni unheard after convicting him of murder counts of four people in a criminal case nicknamed as the “Zombe Trial.”
According to him, DPP presented four grounds of appeal, but in determining the same, all the grounds were dismissed, except the first one, which related to a complaint on failure by the High Court to properly interpret sections 22 and 23 of the Penal Code (Chapter 16).
“Looking at this ground of appeal, it is a pure point of law. The Court had held that you cannot convict a person, who abetted the commission of offence without convicting of the principal offender. It is our views that the Court should have ended there,” the counsel submitted.
Nevertheless, he submitted, the court went further by determining factual issues, which were not part of the parties’ discussions during the hearing of the appeal.
Among such issues, he said, related to the presence of Bageni at the scene of crime and that he had lied to senior police officers over the killings.