Mashimba Dotto @ Lukubanija versus The Republic; Criminal Appeal No. 317 of 2013: Court of Appeal of Tanzania at Mwanza (Unreported).
- Evidence
- Witnesses – Failure of prosecution to call material witnesses-Effect
- Corroboration – Whether evidence that requires corroboration can corroborate another.
- Confession – Retracted confession – Whether the court can enter conviction without corroboration when accused alleged he was tortured?
- Criminal Procedure
- Assessors – Assessors in murder cases – Whether it is mandatory to involve them before admitting a retracted confession.
Held:-
(i) It is trite law that evidence which itself requires corroboration cannot corroborate another. For instance in this case, the cautioned statement could not corroborate the extra – judicial statement because each one of the two required independent corroboration before a conviction could safely lie.
(ii) It is trite law that as a matter of practice a conviction would not necessarily be illegal but it is a matter of practice in such cases for a trial court to warn itself and if the trial is with the aid of assessors to direct them on the danger of convicting without corroboration.
(iii) Once torture is alleged, courts should always be cautious in relying on the statements.
(iv) It is not safe for the court to rely on a cautioned statement made to the justice of the peace six days after the arrest as the maker of the statement may be in stressfully condition so it may affect his freedom to give statement.
(v) The general and well known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.