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Introduction
After the preliminary hearing, the prosecution formally opens its case by presenting witnesses to provide evidence supporting the charges against the accused. In criminal trials, the prosecution’s case is always initiated first.
Witnesses’ Oaths/Affirmation
The law mandates that all witnesses in criminal proceedings must testify under oath or affirmation, as required by Section 198(1) of the Criminal Procedure Act (CPA). This provision ensures that each witness gives evidence under the Oaths and Statutory Declarations Act [Cap 34 R.E. 2019]. Failure to comply with Section 198(1) leads to the evidence being dismissed. An exception to this rule is found in Section 127(2) of the Tanzania Evidence Act (TEA).
Examination-in-Chief
Examination-in-chief is the initial questioning of a witness by the party who called them. This stage allows the witness to present their account of events and submit exhibits according to the law, as provided under Sections 146 and 147(1) and (2) of the TEA. Leading questions are typically not allowed during examination-in-chief unless the court grants permission. The prosecutor must present witnesses logically to establish the case coherently.
Cross-Examination
Cross-examination, governed by Sections 146, 147, and 155 of the TEA and Section 290 of the CPA, is the questioning of a witness by the opposing party after examination-in-chief. The purpose of cross-examination is to obtain admissions that support the cross-examiner’s case, cast doubt on the witness’s testimony, or impeach the witness’s credibility. Effective cross-examination exposes falsehoods and strengthens the truth. The three primary goals are: (i) obtaining evidence that supports the cross-examiner's case, (ii) challenging the witness's accuracy, and (iii) discrediting the witness where appropriate.
Impeachment of a Witness’s Credibility Using Prior Statements
Impeachment using a witness’s previous statements requires the following steps under Sections 154 and 164 of the TEA: (1) reading the previous statement to the witness, (2) highlighting contradictions, and (3) submitting the statement as evidence.
Failure to Cross-Examine on Important Facts
Not cross-examining a witness on significant points implies acceptance of their unchallenged testimony, preventing the opposing party from later disputing it.
Re-Examination
Re-examination is conducted by the party who called the witness after cross-examination, focusing on clarifying matters raised during cross-examination. New issues introduced in re-examination may allow further cross-examination. Re-examination serves to resolve inconsistencies or clarify ambiguities.
Questions by the Court
The trial magistrate may ask questions for clarification either after the witness finishes testifying or, if necessary, during testimony.
Hostile Witness
A hostile witness shows bias against the party who called them. If a witness turns hostile, the calling party can request the court’s permission to treat the witness as hostile and cross-examine them. This request is subject to court discretion after considering objections from the opposing party. Hostile witnesses may face perjury charges.
Statements from Persons Unavailable as Witnesses
Under Section 34B(1) of the TEA, written or electronic statements from unavailable witnesses may be admissible if oral evidence would be allowed. For admissibility, conditions in Section 34B(2)(a)–(f) must be met.
Weight of Statements under Section 34B of TEA
Statements admitted under Section 34B of the TEA are considered reliable for conviction without needing corroboration. However, statements from absent witnesses may require corroboration for a conviction, potentially limiting the effectiveness of Section 34B.
Competence and Compellability of Witnesses
All persons are generally competent to testify unless the court finds them incapable due to factors like age, health, or mental state. Section 130(1) of the TEA specifies that a spouse may testify in cases involving offenses against the spouse, marriage laws, or certain personal offenses affecting family members.
Witness of Tender Age
Section 127(2) of the TEA allows a child under 14 years of age to testify without an oath or affirmation, provided they promise to tell the truth. The child’s apparent age determines their eligibility to give unsworn testimony.
A refractory witness is one who, without valid reason, refuses to be sworn in, refuses to answer questions, fails to produce required documents, or declines to sign their deposition. In such cases, the court can adjourn the case for up to eight days, during which the witness may be committed to prison until they agree to comply. If, at the adjourned hearing, the witness continues to refuse compliance, the court may further adjourn the case and recommit the witness for additional periods until they comply.
If the accused appears as summoned and the complainant, having been informed of the hearing date, fails to appear, the court must dismiss the charge and discharge the accused. However, the court may adjourn the case to another date, allowing bail or remand for the accused as necessary. If the charge is dismissed, the complainant may apply for re-institution within 30 days, provided the absence was beyond their control, for the court to grant a new hearing.
If an accused does not appear at the adjourned hearing date, the court can proceed in their absence to conclusion. Should the accused be convicted, they must be brought before the court to explain their absence before serving the sentence. If the absence was due to uncontrollable circumstances and a defense exists, the conviction may be set aside. The accused’s opportunity to explain their absence is critical, and failure to observe this requirement can invalidate the sentence.
The High Court can try any offense within its jurisdiction, provided it has been investigated by a subordinate court, which must commit the accused for trial before the High Court.
1. Committal Proceedings
Committal proceedings occur in a subordinate court to determine whether an accused should be committed to the High Court. The Director of Public Prosecutions (DPP) reviews the investigation file to assess the sufficiency of evidence. If sufficient, an information document is filed with the High Court, accompanied by statements of witnesses and evidence summaries. The subordinate court then reads the charges and evidence to the accused and commits them to the High Court. Evidence not disclosed in the committal stage cannot be presented without prior notice.
2. Requirement to Involve Assessors
Following the Written Laws (Miscellaneous Amendments) Act, 2022, trials in the High Court are no longer required to involve assessors. However, the court may choose to sit with at least two assessors if it deems it necessary for justice.
3. Selection of Assessors
If assessors are involved, the court selects individuals aged between 21 and 60, allowing the accused to object to any assessor. This practice aims to uphold fair trial standards, enhancing the accused’s confidence in the process. Judges, and if overlooked, counsels, have a duty to inform the accused of this right.
4. Explaining Roles to Assessors
Since assessors are laypersons, it is essential to explain their roles clearly to ensure they understand their responsibilities within the trial.
Court Proceedings
1. Compliance with Section 210 of the CPA
Section 210(1) of the CPA mandates that witness evidence be recorded in narrative form or first person, not reported speech. Non-compliance with this requirement is a serious irregularity affecting the trial.
2. Compliance with Section 210(3) of the CPA
The magistrate must inform each witness of their right to have their evidence read back. If requested, the magistrate records any comments the witness may make to safeguard against evidence distortion.
3. Authentication of Proceedings
It is critical for judges and magistrates to sign off on each witness statement, ensuring authenticity in trial records. This practice aligns with Section 210(1)(a) of the CPA to maintain procedural integrity.
4. Use of Abbreviations in Proceedings
While abbreviations are permissible, recording in full sentences is encouraged for clarity in trial records.
Under Section 229(1) of the CPA, the prosecutor opens the case against the accused and calls witnesses. While no specific provision dictates closing the case, established practice under Sections 229 and 230 holds that the prosecutor alone may decide when to conclude. Neither the court nor the defense can impose closure, as this would violate the accused’s constitutional right to a fair hearing under Article 13(6)(a).
Under Sections 231(1) and (2) and 293(2) of the CPA, it is mandatory for a trial Judge or Magistrate, at the end of the prosecution’s case, to inform the accused of their rights. The accused must be advised on their right to testify on oath or not and to call any witnesses in their defense. Failure by the trial court to adhere to this requirement constitutes a fatal irregularity that invalidates subsequent proceedings. However, in situations where this omission does not prejudice the accused, it may be overlooked under the principle of overriding objective.
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