Kanisius Mwita Marwa versus The Republic; Criminal Appeal No. 306 of 2013: Court of Appeal of Tanzania at Mwanza (Unreported).
- Criminal Procedure
- Preliminary hearing – memorandum of the matters agreed not signed by the accused – Effect
- Preliminary hearing –Effect of nullifying Preliminary hearing proceedings.
- Evidence
- Identification parade - The procedure and effect of non- compliance.
- Identification – visual identification in broad day light –Weight.
- Criminal Law
- Rape – The accused committed rape and threatened people with weapon and ran away with the victim’s property without intention to steal – Whether offence of armed robbery proved.
Held:-
(i) In conducting the preliminary hearing the trial court is directed by section 192(3) of CPA at one stage to prepare a memorandum of the matter agreed, to read over and explain it to the accused in a language that he understands, and subsequently require him to and his advocate (if any) as well as the public prosecutor to sign it. In case the procedure is not complied with, such omission vitiates the preliminary hearing proceedings only and not the rest.
(ii) The effect of nullifying proceedings of a preliminary hearing meant that all the evidence that the parties thought was deemed proved in term of section 192(4)of CPA, would be proved in the ordinary way.
(iii) Identification parade should be conducted according to PGO NO 232 issued by the IGP. According to GPO, the parade should be conducted by a police office of the rank of the Assistance Inspector or above, the accused should be informed his rights such as right to have his advocate during the exercise, during and after termination of the parade he should be asked if he was satisfied that the parade was conducted in a fair manner and must make a note of his reply. Where the procedure may not have been followed, the evidence becomes worthless.
(iv) Visual identification in broad day light and time spent by the witness with the accused reduces possibility of mistaken identity.
(v) Where an armed person deprives another of her property in the course of committing rape, he is guilty of armed robbery though intention to steal was not proved. It is the same as a person who has killed another in the course of committing robbery, such person cannot escape the wrath of the law merely because he did not intend to kill.