Frank Michael versus The Republic; Criminal Appeal No 323 of 2013; Court of Appeal of Tanzania at Mwanza (Unreported)
- Evidence
- Visual identification – whether dock identification is sufficient.
- Confessions – retracted or repudiated confessions – trial within trial must be conducted.
- Confessions – confessions leading to discovery – due process must be followed.
- Criminal procedure
- Search – search conducted by police without civilian witness – effect.
Held:-
(i) It is a well established rule that dock identification of an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade at which the witness successfully identified the accused before the witness was called to give evidence at the trial.
(ii) Trial courts have a duty to hold a trial within trial wherever an accused confessional statement is either repudiated or retracted before it is admitted in evidence. Once an objection is made by the defence after the trial court has informed the accused of his right to say something in connection with it, which is an unavoidable duty on the part of the trial court, the trial Court must stop everything and proceed to conduct a trial within a trial giving each side opportunity to call a witness or witnesses in support of its position. (Cited Makumbi Ramadhani Makumbi and 4 others v. R; Criminal Appeal No 199 of 2010; Court of Appeal of Tanzania (Unreported).
(iii) When search is conducted exclusively by the police without involving civilian witnesses, the court cannot overrule the possibility that the items might have been fraudulently planted.
(iv)For the fact thereby discovered (Section 31 of the Evidence Act, Cap 6 R.E. 2002) to be of any utility, it must be so discovered upon a due process, and above all, it must implicate the person accused.